Franklin v. State, No. 180

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before MURPHY; COLE
Citation319 Md. 116,571 A.2d 1208
Docket NumberNo. 180
Decision Date01 September 1987
PartiesSalvadore Benjamin FRANKLIN v. STATE of Maryland. ,

Page 116

319 Md. 116
571 A.2d 1208
Salvadore Benjamin FRANKLIN
v.
STATE of Maryland.
No. 180, Sept. Term, 1987.
Court of Appeals of Maryland.
April 6, 1990.

George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender and Nancy S. Forster, Asst. Public Defender, all on brief), Baltimore, for petitioner.

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL *, JJ.

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:

Page 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 [571 A.2d 1209] 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 doubt of the lack of such justification, mitigation, or excuse to find malice.

Page 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

Page 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 [571 A.2d 1210] 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 request 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...

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27 practice notes
  • Conyers v. State, No. 27
    • United States
    • Court of Appeals of Maryland
    • May 17, 1999
    ...certainty ... the error in the instruction resulted in a guilty verdict that otherwise would not have been rendered"); Franklin v. State, 319 Md. 116, 571 A.2d 1208 (1990)(plain error in jury instruction that specific intent to kill was not required to establish crime of assault with intent......
  • Savoy v. State , No. 120
    • United States
    • Court of Appeals of Maryland
    • June 23, 2011
    ...of plain error in a jury instruction on malicious wounding with intent to disable that omitted specific intent); Franklin v. State, 319 Md. 116, 571 A.2d 1208 (1990) (taking cognizance of plain error in an instruction indicating that specific intent to kill was not required to establish ass......
  • Unger v. State, No. 111
    • United States
    • Court of Special Appeals of Maryland
    • May 24, 2012
    ...and discussed in State v. Adams, supra, 406 Md. at 308-311, 958 A.2d at 336-338 (dissenting opinion). See also, e.g., Franklin v. State, 319 Md. 116, 122-123, 571 A.2d 1208, 1210-1211 (1990); State v. Colvin, 314 Md. 1, 25, 548 A.2d 506, 517-518 (1988); State v. Evans, 278 Md. 197, 211, 362......
  • Richmond v. State, No. 138
    • United States
    • Court of Appeals of Maryland
    • September 1, 1991
    ...v. State, 325 Md. 552, 568, 602 A.2d 677, 694 (1992); Sims v. State, 319 Md. 540, 550, 573 A.2d 1317, 1301 (1990); Franklin v. State, 319 Md. 116, 121, 571 A.2d 1208, 1210 (1990); Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041, 1043 (1988); State v. Hutchinson, 287 Md. 198, 202, 411 A.2d......
  • Request a trial to view additional results
27 cases
  • Conyers v. State, No. 27
    • United States
    • Court of Appeals of Maryland
    • May 17, 1999
    ...certainty ... the error in the instruction resulted in a guilty verdict that otherwise would not have been rendered"); Franklin v. State, 319 Md. 116, 571 A.2d 1208 (1990)(plain error in jury instruction that specific intent to kill was not required to establish crime of assault with intent......
  • Savoy v. State , No. 120
    • United States
    • Court of Appeals of Maryland
    • June 23, 2011
    ...of plain error in a jury instruction on malicious wounding with intent to disable that omitted specific intent); Franklin v. State, 319 Md. 116, 571 A.2d 1208 (1990) (taking cognizance of plain error in an instruction indicating that specific intent to kill was not required to establish ass......
  • Unger v. State, No. 111
    • United States
    • Court of Special Appeals of Maryland
    • May 24, 2012
    ...and discussed in State v. Adams, supra, 406 Md. at 308-311, 958 A.2d at 336-338 (dissenting opinion). See also, e.g., Franklin v. State, 319 Md. 116, 122-123, 571 A.2d 1208, 1210-1211 (1990); State v. Colvin, 314 Md. 1, 25, 548 A.2d 506, 517-518 (1988); State v. Evans, 278 Md. 197, 211, 362......
  • Richmond v. State, No. 138
    • United States
    • Court of Appeals of Maryland
    • September 1, 1991
    ...v. State, 325 Md. 552, 568, 602 A.2d 677, 694 (1992); Sims v. State, 319 Md. 540, 550, 573 A.2d 1317, 1301 (1990); Franklin v. State, 319 Md. 116, 121, 571 A.2d 1208, 1210 (1990); Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041, 1043 (1988); State v. Hutchinson, 287 Md. 198, 202, 411 A.2d......
  • Request a trial to view additional results

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