Franklin v. State

¹¹⁷ COLE, Judge. Petitioner, Salvadore Benjamin Franklin, was charged by indictment in the Circuit Court for Prince George’s County with assault with intent to murder, assault with intent to maim, assault with intent to disfigure, false imprisonment, and assault and battery. The charges arose out of an altercation between Franklin and his former girlfriend, Stephanie Briggs, on November 28, 1985, at Franklin’s apartment. At trial, Briggs testified that Franklin asked her to accompany him to his apartment to remove their baby’s clothing.

Briggs recounted that as she attempted to remove the clothing Franklin beat her brutally. He continued to do so for approximately six hours, hitting her with a chair over her body, slapping her several times, threatening her with a pair of scissors and a knife, and body slamming her to the floor causing her to lose consciousness. After regaining consciousness, she was forced to kneel on the floor and cut her own hair. When she became dizzy and fell to the floor, Franklin kicked her and punched her in the ribs.

Finally, after some more beatings, Franklin had sex with her and he fell asleep. At that point Briggs left the apartment and hitched a ride to her godfather’s house in Washington, D.C. She was later taken to Howard University Hospital where she was diagnosed as suffering from severe bruises, abrasions, a ruptured eardrum, a fractured rib, a collapsed lung, and a brain contusion. The doctor described these injuries as life threatening. During the trial, defense counsel submitted to the trial judge the following jury instruction for the charge of assault with intent to murder: ¹¹⁸ DEFENDANT’S PROPOSED INSTRUCTION FOR ASSAULT WITH INTENT TO MURDER Assault with intent to murder consists of the elements of an assault and an intent to murder.

In order for a person to be found guilty of this offense, the State must prove beyond a reasonable doubt that: (1) there was an assault on the victim; (2) the assault was made by the defendant; and (3) the assault was committed with the intent to murder the victim. The term “assault,” as used here, is any intentional attempt by force to inflict injury upon the person of another. The essence of the offense of assault with intent to murder is the term “intent to murder.” In order for a person to be found guilty of assault with intent to murder, the assault must have been committed with such intent that if death had resulted the act would have been murder but not manslaughter. Murder is an unlawful killing of a human being with malice aforethought.

Malice may be expressed or implied from the circumstances, but it must be present. Since malice is indispensable to a finding of a murder, in order to find assault with intent to murder, you must find the defendant acted with malice. Malice is an intent to kill or to do grievous bodily injury, or to do an act which would usually cause death or great bodily harm where there is no justification, excuse or mitigation. A specific intent to murder is not necessary to sustain a conviction; it is sufficient if there was an intention to commit grievous bodily harm.

The intent cannot be inferred from only an assault or the use of a weapon, although these are factors to be considered. You may infer an intent to kill from the use of a deadly weapon directed toward a vital part of the body, but you must be convinced beyond a reasonable dpubt of the lack of such justification, mitigation, or excuse to find malice. ¹¹⁹ The court, without objection from defense counsel, instructed the jury, in pertinent part, as follows: In order for a person to be found guilty of this offense, the State must prove beyond a reasonable doubt that there was an assault upon the victim, that the assault was made by the Defendant and that the assault was committed with the intent to murder the victim. The term “assault” as used here is any intentional attempt by force to inflict injury upon the person of another. The essence of the offense of assault with intent to murder is the term “intent to murder.” A specific intent to murder is not required.

It is enough if you find that the accused intended to inflict grievous bodily harm. The intent cannot be inferred from the mere fact of the assault or from the mere use of a deadly weapon, (emphasis added.) After deliberating for an hour and a half, the jury asked the trial court to explain “what specifically constitutes intent to murder.” The court repeated its instructions including the statement that “a specific intent to murder is not a necessary element for the conviction of assault with intent to murder. It is sufficient if there was an intention to commit grievous bodily harm.” There was no objection. Based on these instructions the jury convicted Franklin on all five counts.

He was sentenced to concurrent prison terms of thirty years for assault with intent to murder, ten years each for assault with intent to maim and assault with intent to disfigure, and a fifteen year consecutive sentence for false imprisonment. The fifth count of assault and battery merged with the first count. Franklin appealed to the Court of Special Appeals complaining that the jury instruction given by the trial judge on assault with intent to murder was erroneous. That court, however, held that the issue had not been preserved for appellate review due to defense counsel’s failure to object.

The intermediate appellate court in an unreported per curiam opinion, relying on its decision in Glenn v. State, 68 Md.App. 379 , 511 A.2d 1110 , cert. denied, 307 Md. 599 , 516 ¹²⁰ A.2d 569 (1986), decided one month after Franklin was tried and convicted, held that the instruction given by the trial judge was an incorrect statement of the law but was correct in an evidentiary sense since the jury could have inferred a specific intent to kill from an intent to inflict grievous bodily harm. We granted Franklin’s petition for certiorari and by per curiam order, in Franklin v. State, 310 Md. 568 , 530 A.2d 743 (1987), summarily reversed and remanded the case to the Court of Special Appeals for consideration in light of State v. Jenkins, 307 Md. 501 , 515 A.2d 465 (1986). On remand, the intermediate appellate court by per curiam decision reaffirmed the judgment of the Circuit Court for Prince George’s County. We granted certiorari solely to determine whether the trial court’s instruction on assault with intent to murder constituted plain error.

Initially, the State argues that there are no compelling circumstances to justify review by this Court given defense counsel’s failure to object and specifically, that it was at defense counsel’s réquest that the instruction was given. It contends that the error was one of law, not fact, and therefore not material and did not deprive the defendant of a fair and impartial trial within the contours of the plain error rule. We reject the State’s argument for the reasons set forth below. We have adhered to the view that this Court may, upon its own motion, take cognizance of and correct any plain error in a trial court’s jury instruction, without an objection from defense counsel, where the error is material and affects the right of the defendant to a fair trial. 1 Dawkins ¹²¹ v. State, 313 Md. 638 , 547 A.2d 1041 (1988); Gore v. State, 309 Md. 203 , 522 A.2d 1338 (1987); Trimble v. State, 300 Md. 387 , 478 A.2d 1143 (1984); Hall v. State, 292 Md. 683 , 441 A.2d 708 (1982); State v. Hutchinson, 287 Md. 198 , 411 A.2d 1035 (1980).

Hutchinson involved a trial judge’s failure to instruct the jury that in addition to finding the defendant guilty, it could also find him not guilty. We held this to be plain error. We said that plain error occurs when the erroneous jury instruction materially affects the issue to be decided with such impact that it deprives the defendant of a fair and impartial trial. 287 Md. at 202-03 , 411 A.2d at 1038 . We emphasized that the error is material when it bears upon the question at issue and tends to influence the trier of fact’s decision.

We concluded that the error, in not instructing the jury as to all possible verdicts, deprived the defendant of a fair trial. We explained that we would exercise discretion to note plain error within certain limitations: While we do not propose to set forth any fixed formula for determining when discretion should be exercised, we do expect that the appellate court would review the materiality of the error in the context in which it arose, giving due regard to whether the error was purely technical, the product of conscious design or trial tactics or the result of bald inattention. We enumerate these factors because we feel they are ordinarily inconsistent with circumstances justifying an appellate court’s intervention under § h. In our cases we have characterized instances when an appellate court should take cognizance of unobjected to error as compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.

Hutchinson, 287 Md. at 203 , 411 A.2d at 1038 . Although this Court has not, prior to this occasion, addressed the materiality of plain error in the context of an instruction dealing with the crime of assault with intent to murder, the rationale used by this Court in recognizing plain error in other cases is instructive. ¹²² In Squire v. State, 280 Md. 132 , 368 A.2d 1019 (1977), the trial judge, without objection, instructed the jury that the burden of proof was on the defendant to prove his claim of self-defense. We held this plain error. We said that, although the trial court could not have known the law would change at the time the jury was instructed, nevertheless because the appeal was pending when the change occurred, fundamental fairness dictated that the defendant receive the benefit of the change.

We set forth this principle with some particularity in State v. Evans, 278 Md. 197 , 362 A.2d 629 (1976). There, the defendant, Edward Evans, charged with murder, raised the defenses of provocation and self-defense in an attempt to mitigate the murder charge to the level of manslaughter. The trial court instructed the jury that the State carried the burden to prove every element of the crime charged, but that the defendant had the burden of proving, by a preponderance of the evidence,