Walker v. State, No. 63

CourtCourt of Appeals of Maryland
Writing for the CourtELDRIDGE
Citation684 A.2d 429,343 Md. 629
PartiesDonald WALKER v. STATE of Maryland. ,
Docket NumberNo. 63
Decision Date01 September 1995

Page 629

343 Md. 629
684 A.2d 429
Donald WALKER
v.
STATE of Maryland.
No. 63, Sept. Term, 1995.
Court of Appeals of Maryland.
Nov. 4, 1996.

[684 A.2d 430]

Page 631

Julia Doyle Bernhardt, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Petitioner.

Gwynn X. Kinsey, Jr., Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Respondent.

Argued before MURPHY, * C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

ELDRIDGE, Judge.

The broad issue in this case is whether the petitioner presented a cognizable claim for relief under the Maryland Post Conviction Procedure Act, Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 645A.

Page 632

I.

The petitioner, Donald Walker, was charged with assault with intent to murder, common law assault, and related offenses arising from a shooting that occurred in a crowded bar during the early morning hours of July 5, 1978. He was tried in June 1979 before a jury in the Criminal Court of Baltimore. Following the presentation of the evidence, the trial judge gave the jury the following instruction regarding assault with intent to murder (emphasis added):

"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 ensued the result would have been murder in either first or second degree.

"Murder is killing with intent to kill that person or with the intent to seriously or severely injure that person without any excuse, justification or mitigation. Therefore, if you decide Mr. Walker beyond a reasonable doubt was the person who shot Mr. Wheeler and that he intended to kill or severely injure him, then you find him guilty of the crime of assault with intent to murder."

No objection to this instruction was made by Walker's attorney.

The jury convicted Walker of assault with intent to murder, and, in accordance with the court's instructions, rendered no verdict on the count charging common law assault. Walker's conviction was affirmed by the Court of Special Appeals in an unreported opinion in November 1980, and this Court denied his petition for a writ of certiorari in March 1981. Walker did not challenge the above-quoted jury instruction in his direct appeal and certiorari petition. 1

Page 633

Walker then filed two petitions for post conviction relief, one in 1981 and the other in 1984, and both were denied. Although he made several allegations, Walker failed to [684 A.2d 431] challenge the jury instruction at issue in either petition. 2

The current proceedings were commenced in December 1993, when Walker filed in the Circuit Court for Baltimore City his third petition for post conviction relief. In this petition, Walker asserted that the trial court incorrectly instructed the jury that an intent to inflict severe injury was sufficient to support a conviction for assault with intent to murder, and that this error permitted the State to obtain his conviction without proving every element of the offense beyond a reasonable doubt.

The circuit court granted post conviction relief in an opinion and order filed in March 1994, concluding that Walker's conviction of assault with intent to murder should be vacated based upon this Court's decisions in Franklin v. State, 319 Md. 116, 571 A.2d 1208 (1990), and State v. Jenkins, 307 Md. 501, 515 A.2d 465 (1986). See also Glenn v. State, 68 Md.App.

Page 634

379, 511 A.2d 1110, cert. denied, 307 Md. 599, 516 A.2d 569 (1986). Those cases held that a specific intent to kill was an element of the statutory crime of assault with intent to murder, and that the intent element of the crime could not be satisfied by an intent to commit grievous bodily injury. In the Franklin case, there had been no objection to a jury instruction that the intent element of the offense could be satisfied by an intent to commit grievous bodily injury. In fact, the erroneous instruction had been requested by defense counsel. Nonetheless, upon direct review of Franklin's conviction, this Court held that the instruction was "plain error" affecting "the right of the defendant to a fair trial," and we reversed the conviction. Franklin v. State, supra, 319 Md. at 120, 571 A.2d at 1210.

The circuit court in the present case held that the Franklin, Jenkins, and Glenn decisions should be applied to Walker's case. The circuit court indicated that, prior to Jenkins, many trial judges and lawyers believed that a jury instruction like that given at Walker's trial was a correct statement of the law. Nevertheless, the court expressed the view that the Jenkins case "did not announce a new rule of law," and that "it simply identified a correct application of an existing rule." Consequently, in the view of the circuit court, the principles set forth in Jenkins were fully applicable to Walker's case when his trial took place in 1979, and no issue concerning a "prospective only" application of Jenkins was presented. With regard to the lack of any objection by Walker's counsel to the erroneous instruction, the circuit court reasoned as follows:

"Thus, as I view the matter, the issue largely comes down to whether standards of 'plain error' on direct appeal differ significantly or meaningfully from the standards applicable on post conviction review of an issue.... The answer is 'no.' "

Upon the State's application for leave to appeal, the Court of Special Appeals, in an unreported opinion, remanded the case to the circuit court. The Court of Special Appeals seemed to agree with the circuit court that the jury instruction at Walker's trial "was incorrect at the time it was given." The

Page 635

intermediate appellate court went on to construe the circuit court's action as a decision applying the "plain error" doctrine embodied in Maryland Rules 4-325(e) and 8-131(a). The Court of Special Appeals then stated that these rules apply only to direct appellate review, and that they do not authorize a court in a post conviction proceeding to invoke[684 A.2d 432] the "plain error" doctrine. The Court of Special Appeals directed the circuit court to reconsider the case and determine if Walker's complaint about the jury instruction was cognizable under the Post Conviction Procedure Act or if it had been waived for purposes of that statute.

After the remand, the circuit court issued another opinion and order again granting Walker's petition and vacating his conviction of assault with intent to murder. The court reiterated that State v. Jenkins, supra, Franklin v. State, supra, and Glenn v. State, supra, should be applied to vacate Walker's conviction, reasoning that the instruction given to the jury at Walker's trial was erroneous when given and constituted "fundamental error" entitling Walker to post conviction relief and a new trial. In accordance with the Court of Special Appeals' directive to determine whether there had been a waiver for purposes of the Post Conviction Procedure Act, the circuit court concluded that Walker did not waive the claim that the jury instruction was erroneous because Walker himself did not intelligently and knowingly fail to object and because "[c]ounsel's lack of prescience is not attributable to Walker." Alternatively, the court held that if the claim had been waived, the waiver was excused by the existence of "special circumstances" within the meaning of the Post Conviction Procedure Act, Art. 27, § 645A(c)(1). The "special circumstances" found by the circuit court were that, at the time of Walker's trial, the law concerning the intent element of assault with intent to murder was misunderstood by trial judges and lawyers, and that the law was not finally clarified until this Court's opinion in State v. Jenkins, supra, more than five years after Walker's conviction became final.

Thereafter, the State filed another application for leave to appeal. The Court of Special Appeals granted the application

Page 636

and reversed the circuit court's judgment in an unreported opinion. Unlike its earlier opinion remanding the case, this time the Court of Special Appeals did not view the controlling issue as whether Walker's claim had been waived or was cognizable under the Maryland Post Conviction Procedure Act. In fact, the intermediate appellate court's opinion did not mention that statute. Moreover, the Court of Special Appeals' opinion did not refer to the lack of an objection to the jury instruction, and made no reference to waiver or to the circuit court's alternative holding that there existed "special circumstances" within the meaning of the Post Conviction Procedure Act. Instead, the intermediate appellate court stated that "[t]he question is whether the ... rule [set forth in Franklin, Jenkins, and Glenn ] should be applied retroactively to this case." After stating its view that "[t]he law for determining whether a case is to be afforded retroactive effect is somewhat muddled," the Court of Special Appeals concluded that State v. Jenkins and Glenn v. State overruled prior law concerning the intent element of assault with intent to murder. The appellate court stated that "the law announced in" Jenkins and Glenn represented a " 'clear break with the past,' " quoting Griffith v. Kentucky, 479 U.S. 314, 325, 107 S.Ct. 708, 714, 93 L.Ed.2d 649, 659-660 (1987). Consequently, according to the Court of Special Appeals, the Jenkins and Glenn cases are "not accorded retroactive effect."

Walker then filed a petition for a writ of certiorari which this Court granted. We agree with Walker that the Court of Special Appeals erred in holding that the Jenkins case represented a "clear break with the past" and should be applied only prospectively. Moreover, we believe that the issues identified in the first opinion by the Court of Special Appeals, and in the circuit court's final...

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52 practice notes
  • Woodfolk v. Maynard, No. 15-6364
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 23, 2017
    ...or an unknowing or unintelligent waiver. McElroy v. State , 329 Md. 136, 617 A.2d 1068, 1073-74 (1993) ; see Walker v. State , 343 Md. 629, 684 A.2d 429, 434-36 (1996).Tellingly, however, the authorities upon which the State relies do not address the application of § 7-106(b)(1)(i)(4) to in......
  • Conyers v. State, No. 26
    • United States
    • Court of Appeals of Maryland
    • February 5, 2002
    ...(recognizing that Oken's counsel's decision not to raise the adequacy of the voir dire on appeal was a deliberate one); Walker v. State, 343 Md. 629, 647, 684 A.2d 429, 437-38 (1996) (noting that petitioner's post conviction challenge to a jury instruction was waived by his failure to raise......
  • Bodeau v. State, No. 1365, Sept. Term, 2019
    • United States
    • Court of Special Appeals of Maryland
    • October 1, 2020
    ...instructions by not objecting to the instructions at trial or raising the issue on direct appeal); see also Walker v. State , 343 Md. 629, 645, 684 A.2d 429 (1996) 239 A.3d 884 ("[T]he failure to object to a jury instruction ordinarily constitutes a waiver of any later claim that the instru......
  • Conyers v. State, No. 27
    • United States
    • Court of Appeals of Maryland
    • May 17, 1999
    ...the following cases, Maryland appellate courts declined to apply the plain error doctrine to erroneous jury instructions: Walker v. State, 343 Md. 629, 684 A.2d 429 (1996); Ayers v. State, 335 Md. 602, 645 A.2d 22 (1994); State v. Daughton, 321 Md. 206, 582 A.2d 521 (1990)(reversing Court o......
  • Request a trial to view additional results
52 cases
  • Woodfolk v. Maynard, No. 15-6364
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 23, 2017
    ...or an unknowing or unintelligent waiver. McElroy v. State , 329 Md. 136, 617 A.2d 1068, 1073-74 (1993) ; see Walker v. State , 343 Md. 629, 684 A.2d 429, 434-36 (1996).Tellingly, however, the authorities upon which the State relies do not address the application of § 7-106(b)(1)(i)(4) to in......
  • Conyers v. State, No. 26
    • United States
    • Court of Appeals of Maryland
    • February 5, 2002
    ...(recognizing that Oken's counsel's decision not to raise the adequacy of the voir dire on appeal was a deliberate one); Walker v. State, 343 Md. 629, 647, 684 A.2d 429, 437-38 (1996) (noting that petitioner's post conviction challenge to a jury instruction was waived by his failure to raise......
  • Bodeau v. State, No. 1365, Sept. Term, 2019
    • United States
    • Court of Special Appeals of Maryland
    • October 1, 2020
    ...instructions by not objecting to the instructions at trial or raising the issue on direct appeal); see also Walker v. State , 343 Md. 629, 645, 684 A.2d 429 (1996) 239 A.3d 884 ("[T]he failure to object to a jury instruction ordinarily constitutes a waiver of any later claim that the instru......
  • Conyers v. State, No. 27
    • United States
    • Court of Appeals of Maryland
    • May 17, 1999
    ...the following cases, Maryland appellate courts declined to apply the plain error doctrine to erroneous jury instructions: Walker v. State, 343 Md. 629, 684 A.2d 429 (1996); Ayers v. State, 335 Md. 602, 645 A.2d 22 (1994); State v. Daughton, 321 Md. 206, 582 A.2d 521 (1990)(reversing Court o......
  • Request a trial to view additional results

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