Dean v. State

• Decision Date: 01 September 1991
• Docket Number: No. 27,27
• Citation: 325 Md. 230,600 A.2d 409
• Parties: Thomas Kenneth DEAN v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 230

325 Md. 230

600 A.2d 409

Thomas Kenneth DEAN v. STATE of Maryland.

No. 27, Sept. Term, 1991.

Court of Appeals of Maryland.

Jan. 17, 1992.

Diane G. Goldsmith, Assigned Public Defender (Edward J. Weber, Assigned Public Defender, both on brief), Baltimore, for petitioner.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

KARWACKI, Judge.

Petitioner, Thomas Kenneth Dean, was convicted by a jury in the Circuit Court for Cecil County of attempted murder in the second degree and was sentenced to 30 years imprisonment. In an unreported opinion, the Court of Special Appeals affirmed that judgment. We granted Dean's petition for certiorari to consider the following issues:

1. Whether the trial court erred in permitting the State to enter a nolle prosequi to the charge of assault with intent to disfigure.

2. Did the trial court err in refusing to instruct the jury regarding the elements of the crime of assault with intent to disfigure.

Because we perceive no error in the trial court's rulings, we shall affirm the judgment of the intermediate appellate court.

I.

Dean and his wife, Patsy Dean, were married in 1977. During their marriage, the parties separated on several occasions. The most recent separation occurred in September, 1988, at which time Dean and his wife sold their jointly owned property, and Mrs. Dean moved to a new address.

About a week before Thanksgiving in 1988, Mrs. Dean began dating Noble McCoy. Mrs. Dean alleged that on November 24, 1988, her husband accosted her outside the home of Noble McCoy and threatened to kill her. As a result of this encounter, Mrs. Dean filed a complaint against her husband with the Elkton Police Department.

On December 10, 1988, Dean entered the Perfect Touch Styling Salon, a business owned and operated by his wife. Shortly thereafter, Mrs. Dean began screaming. According to the testimony of Stephanie Hamilton, the owner of the Sun-Less Tanning Salon, which adjoined Mrs. Dean's salon, Mrs. Dean ran into the tanning salon screaming, "Don't let him burn me." Dean was running closely behind his wife and succeeded in cornering her. Dean then took a cigarette lighter from his pocket and waved it in front of his wife's face. That lighter did not work, so Dean produced a second lighter which he used to ignite the gasoline he had previously poured on his wife. Mrs. Dean's clothing immediately caught on fire, and Dean left the premises. At that point, a customer emerged from a tanning booth, wrapped Mrs. Dean in a jacket, and extinguished the fire. Mrs. Dean suffered severe burns about her upper body which required her hospitalization until December 21, 1988.

Dean was indicted for assault with intent to murder (Count 1), attempted murder (Count 2), assault with intent to disfigure (Count 3), assault and battery (Count 4), and assault (Count 5). Before jury selection began at the outset of Dean's trial, the State was permitted, over Dean's objection, to enter a nolle prosequi with respect to the charges of assault with intent to murder, assault with intent to disfigure, and assault, leaving only the charges of attempted murder and assault and battery to be litigated.

At trial, Mrs. Dean testified that Dean entered her beauty shop and threw some liquid on her face and back. She then recounted the chase that ensued which culminated in Dean cornering her in the tanning salon and igniting the liquid. During the trial, testimony was also presented regarding an incident that occurred approximately six months prior to the December 10, 1988 incident in which Dean suffered severe burns while painting a lawn mower. The lawn mower was located next to a kerosene heater upon which Dean had placed a can of spray paint. The spray paint can subsequently exploded. Dean was badly burned, and was left facially scarred. Dean's burns also required the routine application of medication on his back. Several marital arguments arose concerning his wife's refusal to assist Dean in applying his medication, and as a result Dean became depressed.

At the close of all the evidence, Dean requested that the jury be instructed regarding the elements of assault with intent to disfigure. Dean was concerned that, given the choice between attempted murder and battery, the jury would convict him of attempted murder even if it believed that he merely intended to disfigure Mrs. Dean. The court refused to give the instruction, but it did instruct the jury regarding the elements of attempted murder and stressed that attempted murder, in either the first degree or the second degree, requires the specific intent to kill and not just to disfigure. Dean's counsel emphasized this requirement of specific intent during his closing argument to the jury, as did the court in responding to the jury's request for clarification of the distinction between attempted murder in the first degree and attempted murder in the second degree. The jury subsequently convicted Dean of attempted murder in the second degree.

II.

Under Maryland Rule 4-247(a), a 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." As this Court noted in Hooper v. State, 293 Md. 162, 168, 443 A.2d 86, 89 (1982), "[a] nolle prosequi is simply the prosecution's abandonment of a charging document, count or part of a count.... [It] need not be couched in any particular language or take any specific form; it is the substance of the prosecutor's action which controls." See also Kinder v. State, 81 Md.App. 200, 207, 567 A.2d 172, 175 (1989).

Dean contends that the trial court committed reversible error in permitting the State to enter a nolle prosequi with respect to the charge of assault with intent to disfigure. ¹ The central issue in the case was Dean's intent at the time he set his wife on fire. Dean argues that because evidence was presented at trial which would have supported the lesser related offense of assault with intent to disfigure, the trial court should have disallowed the State's nol pros of that count. Dean maintains the withdrawal of this charge left the jury with the choice to convict Dean of either attempted murder or assault and battery. This choice, Dean argues, was really no choice at all given the facts of the case and rendered the trial fundamentally unfair.

To support his claim Dean relies primarily on this Court's decision in Hook v. State, 315 Md. 25, 553 A.2d 233 (1989), and its progeny. ² In Hook, we acknowledged the rule that "the entry of a nolle prosequi is generally within the sole discretion of the prosecuting attorney, free from judicial control and not dependent on defendant's consent." Id. at 35, 553 A.2d at 238, citing Ward v. State, 290 Md. 76, 83, 427 A.2d 1008, 1012 (1981). We also decided, however, that this power "[wa]s not absolute" or "without restraint". ³ Id. at 35-36, 553 A.2d at 238 (citations omitted). Specifically, we held that the authority of the prosecutor to nol pros a charge must be tempered in certain circumstances in order to prevent a situation in which the State's entry of a nolle prosequi forces the fact finder into the untenable position of either convicting a defendant, obviously guilty of some offense, of the most serious charge or acquitting him:

"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 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."

Id. at 43-44, 553 A.2d at 243.

Dean asks us to extend the rationale of Hook to the facts of the instant case where the challenged nol pros involves a lesser related offense rather than a lesser included offense. He argues that the State's nol pros of the assault with intent to disfigure count fatally infected the trial by sabotaging the defense; consequently, he asserts that the trial court's dismissal of the charge constituted reversible error. We disagree.

The circumstances in Hook were significantly different from those in the case sub judice. In Hook, the defendant was charged with, and in fact admitted to, murdering two persons and committing related offenses. At the close of the evidence, the State entered a nolle prosequi to all counts but first degree premeditated murder. During the trial, evidence had been presented from which the jury could have reasonably found that the defendant was so intoxicated that he lacked the capacity to form the specific intent necessary to commit premeditated murder. In light of this evidence, the defendant objected to the nolle prosequi of the lesser included offense of second degree murder.

Based on these facts, we held that the nol pros of the second degree murder charge did deny the defendant a fair trial. We did not, however, pronounce a blanket rule that all lesser included offenses which are legally supported by the evidence could never be nol prossed. Instead, we called for a case-by-case evaluation to determine whether under the particular circumstances of a case the nol pros of a charge would contravene fundamental fairness. With regard to fundamental fairness, we cautioned " 'In order to declare a denial of [fundamental fairness, the reviewing court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevent a fair trial....' "

Id. at 36-37, 553 A.2d at 239 (quoting Lisenba v. California, 314 U.S. 219,...