Background

• Bass was convicted of burglary in the third degree in Montgomery County and sentenced to 10 years imprisonment plus 3 years probation on Jan 11, 2011.
• At the August 7, 2010 incident, Bass entered Christopher Winston’s apartment after an altercation and was told he was no longer welcome in the home.
• Felicia Winston, Felder, and others later entered the apartment; Felder produced a gun and a shooting occurred, with Bass’s involvement disputed.
• Bass was charged with multiple offenses including first-degree burglary; the trial court refused to instruct on fourth-degree burglary, accepting the State’s argument that fourth-degree is not a lesser included offense of first- or third-degree burglary.
• Bass’s counsel argued the jury could be instructed on both third- and fourth-degree burglary as lesser included offenses; the jury ultimately only considered third-degree burglary as a lesser-included offense of first-degree burglary.
• The appellate court ultimately vacated the judgment and remanded for new trial on both third- and fourth-degree burglary.

Issues

Key Cases Cited

• Hook v. State, 315 Md. 25 (1989) (established two-step test for lesser included offense instructions; obligation to include if fairly raised by evidence)
• Hagans v. State, 316 Md. 429 (1989) (defines elements test for lesser included offenses)
• Bowers v. State, 349 Md. 710 (1998) (two-step test; rational basis to convict lesser included offense required)
• Burrell v. State, 340 Md. 426 (1995) (nolle prosequi scope and fairness when lesser included offense exists)
• Johnson v. State, 90 Md.App. 638 (1992) (jury must be instructed on warranted lesser included offense upon request)
• Fairbanks v. State, 318 Md. 22 (1989) (supports use of lesser included offenses to avoid all-or-nothing verdicts)