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` JOHN M. FRANKLIN, § p I ‘* YUU5
§ N0. 106, 200213...
Defendant Below, § . 1 _
Appellant, § Court Below: Superior Coun;
§ of the State of Delaware
v. _ § in and for Sussex County
y §
§
STATE OF DELAWARE, ·§ No. 0304010407C
` §
Plaintiff Below, §
Appellee. §
I Submitted: January 18, 2005
Decided: March 2, 2005
Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices.
I ORDER
This 2“d day of March 2005, on consideration of the parties’ briefs, it
I appears to the Court that:
(I) A Superior Court jury convicted the defendant-appellant, John M.
Franklin, of five counts of rape first degree,] one count of terroristic threateningz
A and one count of endangering the welfare of a child.3 The charges involved
allegations that Franklin engaged in unlawful sexual intercourse with his wife over
a period of several days and threatened to cut her throat in the presence of his
' Dar. Cons ANN. tit. 11, § 773 (2005).
2 111. at § 621.
3 ra. a1§ 1102. y
Case 1:05-cv-OO893—GI\/IS Document 4-2 Filed O1/12/2006 Page 2 of 3
A
Karen had told her about the multiple rapes. On appeal, Franklin contends that the
SANE’s testimony went beyond the issue of consent, which improperly invaded
the province of the jury on an ultimate issue of fact. We review Franklin’s
. argument under a plain error standard of review.4
(3) The Superior Court did not commit plain error in allowing the SANE to
. give an opinionontthe -i-ssue of consent. Delaware Rule of Evidence 704 provides
that testimony "in the form of an opinion or inference otherwise admissible is not
objectionable merely because it embraces an ultimate issue to be decided by the
trier of fact."5 This Court has also held that an expert’s opinion that embraces an
A ultimate issue in the case regarding the consensual nature of the sex does not
invade the province of the jury.° Furthermore, the trial court instructed the jury
that the issue of consent was for the jury to decide and that the jury may give as
much weight to an expert’s testimony as it deems appropriate., Thus, even if the
SANE’s testimony was inadmissible, the trial court’s instruction cured any
4 Wainwright v. State, 504 A.2d 1096, 1100 (Del.), cert. denied, 479 U.S. 869 (1986).
5 Dna. 704.
6 See, eg., Gibbs v. State, 723 A.2d 396 (Del. 1998) (providing that an expert’s opinion
embracing consent to sex does not invade the province of the jury); Wilmer v. State, 707 A.2d
767 (Del. 1998) (holding no abuse of discretion in admitting opinion testimony that sex was non-
consensual); Glazar v. State, 513 A.2d 780 (Del. 1985) (finding no error in admitting the expert
opinion testimony that injuries were the probable result of child abuse).
3
Case 1:05-cv-OO893—Gl\/IS Document 4-2 Filed O1/12/2006 Page 3 of 3
references were that Franklin was going to "f---†his wife "like a name he called
Darnell Bynes." Franklin argues that although the specific derogatory term he
used for Darnell Bynes was never used, the repeated references to the above l
statement at trial violated his rights to due process and to trial by an impartial jury
by improperly injecting race into the criminal proceeding}3 We find Franklin’s
argument unpersua-sive. Here, Franklin has failed to show that the State had a
deliberate intent to create a racial bias against him so as to strengthen its case}4
Franklin’s use of the word was relevant to his state of mind and intent to rape his
wife, who had an affair with Bynes. Furthermore, the trial court instructed the jury
that passion, prejudice, sympathy, public opinion or motive may not influence their
decision. The jury is presumed to have followed the trial court’s instruction}5
NOW, THEREFORE, IT IS HEREBY ORDERED that the judgments ofthe
Superior Court are AFFIRMED.
BY THE COURT:
Justice l
I3 See Holtzmon v. State, 718 A.2d 528 (Del. 1998) (holding that the admission into
evidence of the alleged racial bias of a defendant violates the defendant’s right of due process);
Weddington v. State, 545 A.2d 607, 613 (Del. 1988) (providing that the improper injection of
race in a criminal proceeding poses a serious threat to a dei`endant’s right to a fair trial).
14 Weddington, 545 A.2d at 614-15 (citation omitted). .
I5 Fortt, 767 A.2d at 804; Fuller, 860 A.2d at 329.
5
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