State v. Smith
115 A.3d 210
Md. Ct. Spec. App.2015Background
- Smith was tried for the 2008 killing of Ronald Gibson and convicted of first-degree felony murder (predicated on first-degree burglary), first-degree burglary, and being a felon in possession of a firearm; sentences included life plus five years.
- At the close of the State’s case the prosecutor entered nolle prosequis as to counts including second-degree murder, first- and second-degree assault, handgun use during a felony, and accessory after the fact to second-degree murder. Trial counsel did not object.
- The State proceeded on a theory of first-degree felony murder based on burglary; evidence showed an assault (the shooting) caused Gibson’s death and that entry into the dwelling was disputed.
- On direct appeal convictions were affirmed and certiorari denied. Smith then obtained post-conviction relief: the circuit court found trial counsel ineffective for failing to object to the nolle prosequis because it removed lesser-offense options and prejudiced Smith.
- The State appealed the post-conviction grant, arguing trial counsel lacked the legal right to object (because second-degree felony murder was not a lesser included offense) and, alternatively, that counsel made a reasonable tactical choice not to object.
- The Court of Special Appeals affirmed the post-conviction court: under the particular facts (interconnected burglary, assault, and killing) fairness required that the jury have the option of second-degree felony murder, so counsel could and should have objected; counsel’s reasons for not objecting were not supported as tactical.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Smith) | Held |
|---|---|---|---|
| 1. Was trial counsel legally entitled to object to the State’s nolle prosequi of second-degree felony murder and related counts? | Nolle prosequi was within prosecutor discretion; second-degree felony murder is not a lesser included offense of first-degree felony murder, so counsel had no right to object. | The nol pros removed lesser-offense options (second-degree felony murder and related counts) that were legally and factually supported; counsel could and should have objected to preserve those options for the jury. | Held for Smith: under these facts the assault that produced the death was the predicate for both first-degree felony murder and second-degree felony murder; fairness required treating second-degree felony murder as a lesser included offense here, so counsel was entitled to object. |
| 2. If counsel could object, was his failure to do so a reasonable tactical decision or ineffective assistance? | The record shows counsel pursued an all-or-nothing strategy focused on undermining intent; not objecting may have been tactical and not prejudicial. | Counsel offered no explanation at trial or at the post-conviction hearing for failing to object; absence of record support means no showing of a deliberate tactical choice. | Held for Smith: no credible tactical rationale in the record and the entry of the nolle prosequi infected the trial; counsel’s omission was prejudicial under Strickland. |
Key Cases Cited
- Hook v. State, 315 Md. 25 (1989) (prosecutor’s nol pros of a lesser included offense over defendant’s objection can violate fundamental fairness when evidence supports the lesser)
- Fairbanks v. State, 318 Md. 22 (1989) (application of Hook where nol pros foreclosed a lesser included offense and prejudiced defendant)
- Jackson v. State, 322 Md. 117 (1991) (clarifies Hook: even if evidence could support a lesser, nol pros is permissible if no rational basis exists for convicting only of the lesser)
- Dean v. State, 325 Md. 230 (1992) (Hook does not extend to lesser related offenses that are not lesser included offenses)
- Burrell v. State, 340 Md. 426 (1995) (no Hook violation where evidence rationally supported only conviction of the greater offense)
- Yates v. State, 429 Md. 112 (2012) (continuous-transaction approach: predicate felonies may continue beyond technical completion for felony-murder analysis)
- Nicolas v. State, 426 Md. 385 (2012) (explaining the required-evidence test for lesser-included/offense merger)
- Malik v. State, 152 Md. App. 305 (2003) (second-degree murder is a lesser included offense of premeditated first-degree murder but not of first-degree felony murder)
- Ward v. State, 290 Md. 76 (1981) (nolle prosequi is generally within prosecutor’s discretion)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance of counsel)