In Hook v. State, 315 Md. 25, 553 A.2d 233 (1989), a homicide had clearly been committed, but evidence of voluntary intoxication would have permitted the jury to rationally return a verdict of murder in the second degree. The State elected to proceed only with first-degree murder (both premeditated and felony), and the trial court over objection declined to mention to the jury in any way the existence of the lesser crime of murder in the second degree. The State nol prossed the second degree murder charge, and Hook was subsequently convicted of first-degree murder. The Court of Appeals reversed on the basis that the all-or-nothing option deprived Hook of fundamental fairness. In Hook, voluntary intoxication was an issue at trial, but the jury was put in a position where it could not convict of a lesser crime even if it found voluntary intoxication applicable. Instead, the jury was faced with "a Hobson's choice" of either convicting on first degree murder or acquitting of homicide completely. The Court stated: "it is required that a lesser included offense instruction be given when the evidence warrants such an instruction, but only in such circumstances. The jury's discretion is thus channeled so that it may convict a defendant of any crime fairly supported by the evidence." Id. at 40. The Court of Appeals discussed a defendant's right to have the jury instructed regarding a lesser included offense. In that case, the State charged the defendant with murder pursuant to the shortened statutory form indictment. Id. at 32. Pursuant to this form of indictment, even though the language used refers to first-degree murder, a defendant may be convicted of first-degree murder, second-degree murder, or manslaughter. Id. at 32 n.11. A conviction of murder in the first-degree may be on the basis of premeditated murder or felony murder. Id. In Hook, at trial, the State entered a nol pros, over defense counsel's objection, to the second-degree murder charge. Id. at 35. Defense counsel requested permission to argue second-degree murder to the jury, but "the court refused to instruct the jury as to second degree murder and refused to permit defense counsel to argue to the jury the issue of second degree murder." Id. at 37. The jury convicted the defendant of murder in the first-degree based on both premeditated murder and felony murder. Id. at 38. The Court of Appeals reversed Hook's conviction. Although recognizing the broad discretion of a prosecutor regarding whether to nol pros a count, "or even part of a count," id. at 35, the Court noted that the prosecutor's discretion "may be fettered in the proper circumstances." Id. at 37. The Court held: 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 a 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. And if the trial is before a jury, the defendant is entitled, if he so desires, to have the jury instructed as to the lesser included offense. Id. at 43-44. In Hook v. State, the State brought first and second-degree murder charges against petitioner, but then asked the trial court to enter nolle prosequi as to second-degree murder. Id. Over defense counsel's objection, the trial court entered nolle prosequi for the charge of second-degree murder. Id. at 35. Defense counsel later requested that the court instruct the jury as to second-degree murder and the trial court refused. Id. at 37. The court then instructed counsel that he could not address the issue of second-degree murder during his closing, except to notify the jury that it was not before them. Id. at 37-38. On appeal, the Court of Appeals analyzed whether petitioner was deprived of his right to fundamental fairness because the trial court failed to provide the instruction for second-degree murder. Id. at 36-37. The Court of Appeals held that petitioner was deprived of fundamental fairness, and explained: 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 a 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. And if the trial is before a jury, the defendant is entitled, if he so desires, to have the jury instructed as to the lesser included offense. Id. at 43- 44. The Court of Appeals explained that while entry of a nolle prosequi is generally within the prosecutor's sole discretion, that power is not absolute: 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 a 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. Hook, 315 Md. at 43-44. Hook was charged with the murder of two people and related offenses. Id. at 32. At the close of the evidence, the prosecutor entered a nolle prosequi as to the charge of second-degree murder. Id. at 35. Evidence was presented at trial that Hook was intoxicated at the time the murders were committed. Had the jury determined that Hook was so intoxicated as to lack the requisite specific intent, a conviction of first-degree premeditated murder would have been precluded. As a result, defense counsel objected to the nolle prosequi arguing that, under the circumstances, the failure to submit the second-degree murder count to the jury was a violation of Hook's due process rights, fundamental fairness, equal protection, and an abuse of prosecutorial discretion. Id. The Court determined that there was evidence to support the charge of second-degree murder as well as unequivocal evidence that Hook had murdered two individuals. As a result, the entry of the nolle prosequi left the jury with the "Hobson's choice" to either convict Hook of first-degree murder or return a verdict of not guilty. Id. at 38. The entry of the nolle prosequi thereby enhanced the risk of an unwarranted conviction and denied Hook a fair trial. Id. at 41-42. In reaching that conclusion, the Court called for a case-by-case evaluation to determine whether, under the particular circumstances of a case, the entry of a nolle prosequi for a charge would contravene fundamental fairness. With regard to fundamental fairness, the Court 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 trail ...." Id. at 36-37