State v. Fabien

259 Md.App. 1

302 A.3d 1037

STATE of Maryland v. Kory J. FABIEN

No. 1061, Sept. Term, 2021

Appellate Court of Maryland.

September 5, 2023

Argued by: Jessica V. Carter ( Brian E. Frosh, Atty. Gen. of Maryland, on the brief), Baltimore, Maryland, for Appellant.

Argued by: Stephanie Asplundh ( Paul B. Dewolfe, Public Defender of Maryland, on the brief), Baltimore, Maryland, for Appellee.

Panel: Beachley, Tang, Patrick L. Woodward (Senior Judge, Specially Assigned), JJ.

Woodward, J.

In the Circuit Court for Prince George's County, appellee, Kory J. Fabien, was charged on December 19, 2019 by criminal indictment with four counts arising out of a motor vehicle collision that caused the death of a viable fetus. Both parties agreed that under Md. Code Ann., Crim. Law ("CR") § 2-103, the State could prosecute an individual for murder or manslaughter of a viable fetus. The parties, however, disagreed on whether CR § 2-103 applied to the criminal charges brought against appellee.

On February 9, 2021, appellee filed a motion to dismiss counts one through three of the indictment. On February 22, 2021, the State responded by filing an opposition to appellee's motion. After a hearing held on May 21, 2021, the circuit court issued an Order dated May 28, 2021, and entered June 1, 2021, granting appellee's motion to dismiss.

On September 3, 2021, the State entered a nolle prosequi on the remaining count of the indictment—count four. Shortly thereafter, on September 9, 2021, the State filed a notice of appeal from the circuit court's decision granting appellee's motion to dismiss counts one through three. ¹ On September 14, 2021, the court entered an Opinion and Order of Court "in supplement to the record made on May 21, 2021, and the Order issued on May 28, 2021."

On appeal, the State raises one question for our review:

Did the circuit court err when it granted [appellee]’s motion to dismiss [c]ounts [o]ne, [t]wo, and [t]hree charging [appellee] with manslaughter of a viable fetus by operation of a motor vehicle?

For the reasons set forth herein, we shall affirm the judgment of the circuit court, but not on the grounds relied upon by that court.

BACKGROUND

For the purpose of the instant appeal, the parties do not dispute the facts resulting in appellee's indictment. On January 12, 2019, appellee was driving a motor vehicle in the eastbound lane of Brown Road near the intersection of Brown Road and Nightside Drive in Prince George's County, Maryland. Appellee drove his vehicle across the double-yellow center lines into the westbound lane of Brown Road and caused a head-on collision with another motor vehicle driven by Kevin Berry II and occupied in the front passenger seat by his wife, Haruko Berry, who was at that time 33 weeks pregnant with the couple's second daughter. At the time of the collision, appellee had a blood alcohol concentration of 0.23 grams of alcohol per 100 milliliters of blood, and thus was driving under the influence of alcohol per se. Ms. Berry survived the crash but sustained serious injuries. Ms. Berry was transported to a hospital where she underwent an emergency cesarean section during which her viable fetus, Braylen Berry, ² was delivered stillborn.

As previously stated, the State indicted appellee on December 19, 2019, on four counts: (1) manslaughter by vehicle or vessel in violation of CR § 2-209(b); (2) homicide by motor vehicle or vessel while under the influence of alcohol per se in violation of CR § 2-503(a)(2); (3) criminally negligent manslaughter by vehicle or vessel in violation of CR § 2-210(b); and (4) life-threatening injury by motor vehicle or vessel while under the influence of alcohol per se in violation of CR § 3-211(c)(1)(ii). In counts one, two, and three, the State charged appellee with the death of a viable fetus.

On February 9, 2021, appellee filed a motion to dismiss counts one, two, and three, arguing that CR § 2-103, which permits the prosecution for murder or manslaughter of a viable fetus, was not intended to apply to prosecutions for manslaughter or homicide by motor vehicle based on the death of a viable fetus. Specifically, appellee contended that under CR § 2-103, the State was required to prove that the defendant knew of the existence of the viable fetus. Appellee pointed to subsection (c)(3) of CR § 2-103, wherein it states that the accused must have "wantonly or recklessly disregarded the likelihood that the person's actions would cause the death of or serious physical injury to the viable fetus." Appellee concluded that, because appellee did not know that the passenger in the car that he hit was pregnant, counts one through three must be dismissed.

On February 22, 2021, the State responded by filing an opposition to appellee's motion to dismiss, arguing that subsection (c)(3) of CR § 2-103 requires only a general intent, not a specific intent to harm the viable fetus. The State reasoned that, "[i]f the [L]egislature intended to require the [d]efendant to have knowledge of the viable fetus in order to be found guilty of manslaughter[,] it would have said so." The State also argued that by authorizing the prosecution of a viable fetus for murder or manslaughter, CR § 2-103 created a new class of victim that was included within the scope of the statutes cited in counts one through three. The State pointed out that, although CR § 2-103 sets forth several exceptions to its applicability, there is no express exception for vehicular manslaughter of a viable fetus. The State concluded its opposition by reiterating that the Legislature created CR § 2-103 to allow for the prosecution of murder or manslaughter of a viable fetus, except for protecting "the mother's right to choose."

On April 23, 2021, appellee filed a supplemental motion to dismiss counts one, two, and three of the indictment. Appellee argued that CR § 2-103 is unconstitutionally vague as applied to this case. Specifically, appellee asserted that CR § 2-103 fails to provide fair notice of what is prohibited, because the statute's knowledge requirement is ambiguous, and thus is open to arbitrary enforcement.

Following a hearing held on May 21, 2021, the trial court granted appellee's motion to dismiss counts one, two, and three in an Order dated May 28, 2021, and entered June 1, 2021. In an Opinion and Order of Court entered on September 14, 2021, the trial court held that the language contained in CR §§ 2-209, 2-503, and 2-210 all require the death of "another," meaning a child, after the child's live birth, not a fetus. The court reasoned that, if the Legislature had intended to confer personhood or any rights on the fetus, it would have expressly done so.

After entering a nolle prosequi to count four on September 3, 2021, the State filed a Notice of Appeal on September 9, 2021. We shall supply additional facts as necessary to the resolution of the issue presented.

MOTION TO DISMISS

Appellee filed a motion to dismiss the State's appeal in this Court, arguing that the State failed to comply with Maryland Rule 8-202(a), which requires the filing of a notice of appeal within thirty days after entry of the judgment or order from which the appeal is taken. Md. Rule 8-202(a). Appellee contends that "there were two ways that the State could have filed a valid notice of appeal." First, according to appellee, the State could have entered a nolle prosequi on the remaining fourth count of the indictment and noted the appeal within thirty days of the entry of the Order granting the motion to dismiss. Appellee argues that the State's second option was to proceed to a final judgment on count four and then note the appeal. Regarding the first option, appellee reasons that "[t]he State did not have unlimited time to decide whether to nol pros the fourth count because it only had thirty days to note an appeal from ‘entry of the judgment or order.’ " According to appellee, "[i]t contravenes Rule 8-202 to conclude that the State can delay and start the thirty-day clock when it nol prosses, which is not an ‘entry of the judgment or order from which the appeal is taken.’ " Because the State did not note an appeal until September 9, 2021, which was more than thirty days from the entry of the order granting the motion to dismiss counts one through three on June 1, 2021, appellee concludes that the appeal was untimely and must be dismissed.

In response, the State argues that the notice of appeal was timely filed under Md. Rule 8-202(a). Specifically, the State claims that it has prosecutorial discretion to decide whether and, if so, when to file a nolle prosequi , and thus in this case it had thirty days to note an appeal from September 3, 2021, when, by its entry of the nolle prosequi on count four, the entire case was dismissed. In other words, when the State "exercised its discretion to enter a nolle prosequi on count 4, the prosecution ended with a final judgment embracing the partial dismissal order, and the State thus became authorized to appeal the dismissal of counts 1-3 pursuant to [Md. Code Ann.,] Cts. & Jud. Proc. § 12-302(c)(2)." We agree with the State.

"We have defined entering a nolle prosequi ‘as an official declaration by the State, announcing that it will not pursue the charges in a particular charging document.’ " State v. Simms , 456 Md. 551, 557-58, 175 A.3d 681 (2017) (quoting Gilmer v. State , 389 Md. 656, 659 n.2, 887 A.2d 549 (2005) ). A prosecutor has complete discretion as to what offenses to charge in a particular case. Oglesby v. State , 441 Md. 673, 680, 109 A.3d 1147 (2015). "[T]he State's Attorneys retain the broad discretion they have historically enjoyed in determining which cases to prosecute, which offenses to charge, and how to prosecute the cases they bring." Evans v. State , 396 Md. 256, 298, 914 A.2d 25 (2006). Further, "[t]he entry of a nolle prosequi is generally within the sole discretion of the prosecuting attorney, free from judicial control and not dependent...