State v. Jenkins

• Decision Date: 07 October 1986
• Citation: 307 Md. 501,515 A.2d 465
• Parties: STATE of Maryland v. Tony Lava JENKINS. 129 Sept. Term 1984.
• Court: Maryland Court of Appeals

Page 501

307 Md. 501

515 A.2d 465

STATE of Maryland v. Tony Lava JENKINS.

129 Sept. Term 1984.

Court of Appeals of Maryland.

Oct. 7, 1986.

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellant.

Julia Doyle Bernhardt, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., SMITH, ^* ELDRIDGE, COLE, RODOWSKY and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired) Specially Assigned.

ELDRIDGE, Judge.

The issue in this case is whether separate sentences may be imposed for assault with intent to murder in violation of Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 12, and assault with intent to maim, disfigure or disable in violation of Art. 27, § 386, where both convictions are based upon a single act of assault. ¹

I.

Tony Lava Jenkins was charged in the Circuit Court for Calvert County with assault with intent to murder, assault with intent to maim, disfigure or disable, simple assault and carrying a handgun, and he requested a jury trial. At trial the victim, Alfred Claggett, testified as follows. On May 13, 1983, Claggett and Mike Sharps drove to a store in Sunderland, Maryland. Upon arrival, Claggett got out of the car to speak to a friend. According to Claggett, when he returned a short time later he found Jenkins leaning on the car talking to Sharps. Claggett said that he tapped Jenkins on the shoulder and told him to "lean off" the car. Claggett then proceeded toward the store. Claggett stated that Jenkins followed him, mumbling something unintelligible. Claggett turned to face Jenkins, told him that he "didn't want to hear what he had to say," and pushed him away. After retreating approximately eight feet, Jenkins "got a gun from his side," shot Claggett, and left. Claggett was wounded in the upper part of his right leg, at the hip joint.

Donald Turner, an employee of the store, testified that he saw Jenkins and Claggett "square off" after pushing apart from each other. He testified that he saw Jenkins take a gun from somewhere around his belt area, extend his arm straight forward with the gun pointing to Claggett's belt level and fire. Only one shot was fired.

Jenkins testified in his own behalf. His version of the facts differed significantly from Claggett's. In particular he stated that he had not been leaning on Claggett's car and that Claggett had hit him twice. He testified that Claggett stepped back, but that another person then charged toward him at full force. Jenkins said that he then saw Claggett reach for a gun which provoked him "to pull and fire his own weapon." Jenkins claimed that he discharged his gun toward the ground and had no intention of hurting anyone. On cross-examination, Jenkins said that the version of the facts set forth in his testimony was an accurate summary of what occurred, as opposed to his written statement which contained no reference to Claggett having had a weapon or a second person having been involved in assaulting him.

The jury convicted Jenkins on all four counts. He was sentenced to concurrent prison terms of twenty-five years for assault with intent to murder, ² ten years for assault with intent to maim, disfigure or disable, ³ five years for simple assault and five years for carrying a handgun.

Jenkins appealed to the Court of Special Appeals which reversed the conviction for assault with intent to murder. Jenkins v. State, 59 Md.App. 612, 477 A.2d 791 (1984). The Court of Special Appeals "conclude[d], as a general rule, that, when arising from a single act, these crimes [assault with intent to murder and assault with intent to maim, disfigure or disable] are inconsistent. A person cannot, in other words, based on a single act that might serve to establish either crime, be convicted of and sentenced for both." 59 Md.App. at 615, 477 A.2d 791. The appellate court further stated that in resolving the inconsistency, the criminal defendant was entitled to the benefit of any doubt; thus the conviction would stand only on the crime with the lesser penalty--assault with intent to maim, disfigure or disable. ⁴

In reaching its conclusion, the Court of Special Appeals found that the intent elements of the crimes were inconsistent. The court was of the view that "[a]n intent to maim, disfigure, or disable necessarily falls short of, and thus excludes, an intent to kill. The actor's object in such a case is not to end the victim's life, but to have him linger on, either temporarily or permanently, in a disabled or disfigured condition." 59 Md.App. at 618, 477 A.2d 791. With regard to assault with intent to murder, the appellate court held that an intent to kill was an element of the offense. The court went on (ibid.):

"[A]lthough death is obviously the ultimate form of disablement, it is far more than that; one does not generally regard a killing as merely an extreme form of disablement. It is not the marking or hobbling of the victim that is really intended, but the termination of his very existence. That is the critical, overriding intent, even if death is to be preceded, or caused, by injuries that but for the death would constitute a disfigurement or disablement. Thus, both rationally and realistically, an intent to kill excludes the lesser intent merely to maim, disfigure, or disable."

The Court of Special Appeals also pointed out that, while the same evidence could support a finding of either intent, the intent element of each crime was quite different, saying (id. at 617-618, 477 A.2d 791):

"Like the intent to murder under § 12, an intent to maim, disfigure, or disable under § 386 may be established by showing an intent to do grievous bodily harm, and, as with a prosecution under § 12, that in turn may be inferred from 'the pointing of a gun toward another human and discharging it in random fashion.' Hoes v. State, 35 Md.App. 61, 74, 368 A.2d 1080, cert. denied 280 Md. 731 (1977); Mahoney v. State, 13 Md.App. 105, 110, 281 A.2D 421 (1971), cert. denied 264 Md. 750, cert. denied 409 U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 241 (1972).

"What we have, then, is the fact that the shooting of another person with either the direct or inferable intent to do grievous bodily harm can support a conviction under either statute. But the fact that an intent either to murder or to maim, disfigure, or disable may be found from such a circumstance does not mean that the requisite statutory intents are the same, or that one is subsumed into the other. They are, indeed, quite different, notwithstanding that they may rest upon the same evidence."

Because the two intents were deemed mutually exclusive, the Court of Special Appeals held "that assault with intent to murder and assault with intent to maim, disfigure, or disable are inconsistent crimes, and that, when based on a single act, convictions on both cannot stand." Id. at 620, 477 A.2d 791. Reliance was placed upon Swain v. State, 91 Ga.App. 561, 86 S.E.2d 642 (1955), and R. Perkins, Criminal Law, 188 (2d ed 1969). ⁵ Thereafter, we granted the State's petition for a writ of certiorari which presented the following two questions:

"1. Whether the Court of Special Appeals erred in its determination that the 'intent' requirements for 'assault with intent to murder' and 'assault with intent to maim, disfigure, or disable' are mutually exclusive such that, when based on a single act, convictions on both cannot stand?

"2. Assuming arguendo that the convictions cannot both stand, whether the Court of Special Appeals erred in determining that the appropriate remedy was to vacate the assault with intent to murder conviction without affording the State an opportunity for a new trial?"

With respect to the first question, the State does not disagree with the Court of Special Appeals' characterization of assault with intent to maim, disfigure or disable. Instead, the State's principal argument relates to the intent element of assault with intent to murder. The State contends that the Court of Special Appeals erred in "view[ing] the 'intent to do grievous bodily harm,' not as a separate intent capable of supporting the conviction, but rather an intent from which a specific intent to kill could be inferred." (Brief p. 7). It is argued "that an intent to do grievous bodily harm does not support a conviction for assault with intent to murder because it gives rise to an inference of a specific intent to kill. Rather, it is sufficient because such intent would be sufficient, in and of itself...." (Id. p. 8). The State concludes that an intent to do grievous bodily harm and an intent to maim, disfigure or disable are not mutually exclusive, and that, therefore, guilty verdicts of assault with intent to murder and assault with intent to maim, disfigure or disable, based on the same act, are not inconsistent. (Id. pp. 8-9).

As an alternate argument under the first question presented, the State notes that even if an intent to murder must be found for a conviction of assault with intent to murder, "it still does not stand to reason that an 'intent to murder' and an 'intent to maim' are mutually exclusive. A perpetrator lacking confidence in his marksmanship may specifically intend to kill or, disjunctively, intend that the victim at least be disabled. The fact that the perpetrator may ultimately be successful in achieving, at most, one of these intents does not render it impossible to harbor both intents at the time of the assault." (Brief p. 9 n. 3).

Finally, the State maintains that if the convictions are inconsistent, the appropriate remedy is a remand for a new trial and not a reversal of the conviction carrying the greater penalty. The defendant's argument, on the other hand, reflects the position adopted by the Court of Special Appeals.

II.

The few cases dealing, in various contexts, with the relationship between the statutory offenses of assault...