Bowers v. State

A.2d 1072 Marselle Jerome BOWERS Maryland.

STATE of Term, Sept. No. 1984. Appeals Maryland.

Court of

7,May 1986. Burns, Jr., E. Asst. Publiс George and Keating S. Victoria Defender, brief), Murrell, on (Alan Public Defenders H. Baltimore, for appellant. Sachs, H. Cloutier, (Stephen Asst. Gen. Atty.

Valerie V. Baltimore, Gen., brief), appellee. on Atty. ELDRIDGE, SMITH, MURPHY, C.J., and

Argued before McAULIFFE, JJ. RODOWSKY, COLE, COUCH SMITH, Judge.

Marselle Jerome Bowers was convicted a Charles County jury of murder the first degree and sentenced to death. In Bowers 298 Md. A.2d (1983), we affirmed the conviction but vacated the death sentence because the jury failed to find a mitigating factor which the State at trial had conceded the evidence showed. Accordingly, we remanded the case for a new sentencing proceeding.

A County again Charles jury has sentenced Bowers to death. case reaches us pursuant provisions (1957, Code Maryland 1982 RepLVol.) Art. 414 stating that whenever death penalty is imposed we shall review the sentence. We shall affirm.

The facts are set forth in our earlier opinion. We shall relate only such facts here as are necessary to an under- standing of the presented. issues We consider the issues seriatim.

1. Leg-irons counsel, Over objection was in Bowers leg-irons during the trial. The leg-irons issue of discussed chambers. The trial judge, the same presided one who trial, the earlier said in ruling upon the issue: “This matter was discussed chambers and arewe talking about the concern of defense counsel that Mr. leg-cuffs, Bowers is in which I suppose some would describe them leg-irons, else de- someone would leg-cuffs. scribe them as

“I have from received the Sheriff’s Office a memoran- this, concerning dum and they saying what are is that due to the nature charges, serious of the and Mr. Bowers’ prior background, and specifically as it relates to this he is case considered them an risk. have by escape They personnel instructed the court that security they are properly protect the Defendant and courtroom attend- ants, and indicate they they leg-cuffs that feel that should times, required be at that the all two officers be with during transportation Defendant and inside the court- room.

“I just out that the point Sheriffs is charged Office with courtroom security, and it is the indicated counsel representing Mr. Bowers that he cooperative has been and in way no committed act which would indicate he presents that a security risk.

“However, I am having aware been involved in the prior trial that there was some difficulty that occurred when he was incarcerated in County Somerset which resulted in his being transferred to the Department Corrections, and that after he was at confined the Depart- ment of some Corrections occurred that difficulty institution. This was while awaiting he was the for offense for which he has been convicted.

“I conclude that is there some basis for the concern Office, the Sheriffs though maybe and even given the same set of facts and I might circumstances reach conclusion, different nevertheless these are individuals charged with courtroom and I not I security, am saying would made issue, have a different decision on I the but just am may given it be that saying all facts and I circumstances have might made different decision. “Nevertheless, I don’t feel I ought that second guess charged individuals with security where there has prior been some indication of difficulty involving Defendant.

“I also if point out that something does occur which would some cause action be taken during course I hearing think that would much more prejudicial to Mr. than place Bowers what has taken the begin- ning. conclude,

“I based on that been everything present- has me, toed is being that Sheriff’s Office unreason- instance, arbitrary able their decision this I that feel I reason that should not countermand their direction security court people. So motion denied.”

The memorandum to judge which trial referred was security personnel court relative to this trial from the in individual the Sheriffs Department who commanded the “Court/Civil Division.” It read:

“Cpl. E.K. been Thompson temporarily assigned has Court Security Section for duration of Bowers’ trial.

“Due to serious nature of charges against Bowers and prior background, he is to be escape considered an risk, and, you are directed to steps take to properly protect the Defendant and courtroom attendants. This times; include all may leg cuffs at two officers with during Defendant transportation Courtroom; and inside and any you other means may necessary.” deem The trial in his sentencing report prior listed the Bowers, record of juvenile with a beginning conviction in an charge on assault and battery with a knife. It came down to 1976. There no were crimes of violence listed (1957, as that term is defined 1982 Repl.Vol.) Code Art. (The 413(g)(1). course, would judge, have aware, Bowers, been as we stated 298 Md. at A.2d at outgrowth that as an of the incident now before the Court Bowers was convicted of kidnapping Circuit Court for County April Talbot on 1982. This is defined as a crime of violence. That case was removed from Worcester County County Talbot for trial. Bowers was sentenced to a term of from thirty years August report- 1981.) history following Under institutional ed: History

“Institutional Interfering 24 hour 9/26/75 with Fire Drill lock-up obey Creating orders Distur- 12/10/75 Refused bance Creating days Disturbance 1/9/76 Disrespectful to Officer loss privileges Language Loud Abusive (see prior guards prison on 5/27/76 Assault two record) “Mr. Bowers has been considered a ‘management prob- lem’ throughout his institutional career. During his con- finement in connection with the case, instant he has been involved in one disturbance the jail which involved several other prisoners required and the assistance of the Town Police Department and the Maryland State Police to bring under control. He has also battered a fellow in- mate and a jail employee. acts, As a result of these Mr. Bowers was transferred from the Somerset County jail the custody of the Commissioner of Corrections and placed in segregation (solitary confinement).” judge further reported relative to “Other Signifi- cant Data About Defendant”:

“It is significant that report by his former probation officer, dated September 15, 1981, states that Mr. Bowers was a problem throughout his probation. The report described him as ‘an extremely sophisticated, street-wise individual who is also a very clever manipulator.’

“He has also displayed continuing dissatisfaction with all attorneys assigned to represent him in the instant case. He has refused to cooperate with counsel, has discharged counsel, and has filed voluminous pleadings se, pro with his attorney as ‘stand-by’.[1] His maneuver ings caused the trial to be delayed several times.” on voir dire was asked request jury At Bowers’ panel on the who because anyone “there whether [was] and not render a fair could leg-cuffs] [Bowers at the presented on the evidence verdict based impartial response. person- Bowers positive There was no hearing.” made as to whether inquiry requested later ally opinion are under “7" in this wе shall consider 1. The issues which subsequent petitions to oral pro filed Bowers’ se ones raised argument supplemental briefs. to treat as which we elect “from if appearance leg-shackles, of the [his] jurors would draw any inferences as to character.” [his] Inquiry was made with the judge’s specifying: referring

“We are reputation being truthful, for well peace as his character good as to order other than the matter for which he has been convicted.” Only one said juror he would draw such inferences. He was excused.

Bowers calls attention of the language Court in Allen, Illinois U.S. S.Ct. 25 L.Ed.2d 353 (1970):

“Trying a defendant crime while he sits bound and gagged before the would to an extent comply with that part of the Sixth Amendment’s purposes that accords the defendant an opportunity to confront the witnesses at the trial. contemplate But even to such a it, technique, much less feeling see arouses a that no person should be tried gagged while shackled and except as a last resort. Not is it only possible the sight that shackles gags might and a significant have effect on the feelings jury’s defendant, about the use but the of this technique something is itself of an to affront the very dignity and decorum of judicial proceedings that judge is seeking uphold.” 344, to 90 U.S. at S.Ct. at 1061, 25 L.Ed.2d at 359. placed m

Allen must be tbe context that concerned the case disruptive defendant and the Court’s comment involved gagging shackling. only addition Here we have shack- les. Among things, other told the defendant had the trial judge, warning: after a

“ trial, going ‘There’s not going be no either. I’m to sit here and you’re going you bring to talk and can your and straight shackles out on me jacket put them mouth, tape my good but it will do no there’s because ” no trial.’ going be 397 U.S. at 90 S.Ct. at 357. L.Ed.2d at In that case Allen was from removed the courtroom. Ac- Court, cording to the “the Court of Appeals concluded that a trial could judge expel never a defendant from his own trial and that the judge’s ultimate remedy when faced with an obstreperous defendant like Allen who determines to make his trial impossible is to bind and him.” gag 397 U.S. at at S.Ct. 25 L.Ed.2d at 358. Immediately quoted before which has been by Bowers Court said:

“The flagrant disregard the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with dis- ruptive, contumacious, defiant defendants stubbornly must given sufficient discretion to meet the circum- stances of each case. No one maintaining formula for the appropriate courtroom atmosphere will be best all situations. We think there at are least three constitution- ally permissible for ways a trial to handle an obstreperous (1) him, defendant like Allen: gag bind and (2) thereby keeping him him present; contempt; cite (3) take him out of the courtroom until he promises 343-44, conduct himself properly.” U.S. at 90 S.Ct. 25 L.Ed.2d at 359. The Court concluded: do not removing

“We hold that this defendant from his the only way own the Illinois could judge have hold, constitutionally problem solved the he had. doWe however, nothing that there is whatever in this record to judge show that did not act completely within his discretion. Deplorable as it is to remove a man from his trial, time, own even for a short we hold that the judge did not commit in legal doing error what he did.” 397 1062-63, 90 at U.S. S.Ct. 25 L.Ed.2d at 361. On the issue at hand see Annot. (1979).2 90 A.L.R.3d 17 Association, Ill American Bar Standards Criminal Justice 1982) 15-3.1(c) (2d ed. states: and

“Defendants witnesses should not be subjected restraint physical while court unless the trial has judge found such restraint reasonably necessary to maintain If order. the trial judge restraint, orders such should enter into the record of the case the reasons therefor. physical Whenever restraint of a defendant or witness occurs in presence case, jurors trying the judge should instruct those jurors that such restraint is not to be considered in assessing proof and deter- mining guilt.”

The commentary pertaining to this standard states rele- vant part: stated,

“As the Supreme Court did not rule out physical Nor, however, restraint. provide did the any guide- Court lines for when such restraint be used. might prior Under law, state case special the test for restraint is whether it is ‘reasonably order,’ necessary to maintain which is the language many used cases. emphasizes It that re- straint should be limited to prevent that necessary to anticipated harm. There is some authority that shackles are be used if danger can be overcome by armed guards and that are handcuffs not to used if less leg visible irons will suffice. The harm be pre- causes, vented is disorder from a and includes variety such as escape, interruption risks attack proceedings, others, upon upon the defendant witness attack by witness, others the defendant or and self-destruction. case, determine, exposure represents 2. This insofar as we can our first to an such as is in case at issue bar. We observe that in Jones v. State, (1971), Md.App. Special 276 A.2d 666 the Court of Appeals shackling gagging disruptive was concerned with the of a 443, 450-52, 396, 401, State, Md.App. Dixon v. defendant. 340 A.2d denied, (1975), Md.App. Dunphy cert. 276 Md. 741 675-77, (1971), jurors A.2d where had 634-35 were cases seen process being brought defendants shackled in the of their court. 130 there a record of the trial important

“It is most be appellate affords a sound basis for judge’s action that Further, adopts that if a the standard the view review. used, restraints to be the physical judge trial allows decision, record the of the and must state for the basis conclusions, must the trial support judge’s the record of conduct or during either the individual’s by way of of presence of adduced out the the evidence by way of The physical hearing, on the restraint. question informal, possible alleged makes it for the facts although of record restraint to be made a matter justifying Id. at 15-81 to challenged by party aggrieved.” the be -83. of restraint governing imposition physical the rules in are said to be rooted the

upon criminal defendants Duran, instance, 16 People For common law. English (1976), 1322 states: 545 P.2d Cal.Rptr. Cal.3d re- imposition physical governing “The rules in origin find their criminal defendants upon straints wrote, law. Thus Blackstone ‘... English common nature, highest though under an indictment of [the irons or brought to the bar without must be prisoner] bonds, unless there be evident manner of shackles he secured may and then with danger escape, of an 322; also see (4 Blackstone’s Commentaries irons.’ Black- Hale, which reiterates Pleas of the Crown note, at adds, day this stone’s observation ‘[b]ut their upon their shackles usually come with [prisoners] unbound, till at an but stand bar escape, for fear of legs, on Bishop, New Commentaries they judgment’; receive and the Practice Pleading and Evidence Law (2d states that 1913) ed. which Cases Criminal courtroom so as be unshackled should prisoner ‘ his to clear reason, advantages, and all “use of have ’ De- Krauskopf, Physical Restraint innocence” (1971) 15 St. Louis U.L.J. Courtroom in the fendant 621-22, 545 P.2d Cal.Rptr. at 351.)” 16 Cal.3d original.) (Emphasis at 1325-26.

To similar see Martin v. 405, 409, effect 51 Ala.App. 80, Roberts, 286 84 (1973); State v. So.2d N.J.Super. 159, 86 162, 200, 206 (1965). A.2d 202

Although factually both dissimilar distinguishable and bar, from at the case the both quote from Estelle v. parties Williams, 501, 1691, 425 U.S. 96 S.Ct. 48 L.Ed.2d 126 (1976). case who, That involved a defendant the on morn- trial, ing of his asked a jail officer for his civilian clothes to wear at trial. No action obliged was taken and he was jail stand trial in attire. opinion The Court concluded by its saying: cannot, the

“[Although State with the Four consistently Amendment, teenth an compel accused to stand trial before a while clothes, dressed prison identifiable the failure to make an to ‍‌​​​‌​​​​​​​​​​​‌​‌​​‌‌​​​​​‌​‌‌‌‌​​​​‌‌‌​‌‌​​‌‌‍the as to objection being court clothes, tried in such reason, whatever is sufficient to negate presence of compulsion necessary establish 512-13, constitutional violation.” 425 U.S. at 96 S.Ct. at 1697, L.Ed.2d 48 at 135. opened

The Court its of discussion the issue before it by stating: right

“The to a fair is a liberty fundamental secured Drope v. Mis by Fourteenth Amendment. souri, 162, 420 U.S. 896, 904, 172 S.Ct. 43 L.Ed.2d [95 (1975). The innocence, of presumption although not 103] Constitution, articulated is a basic component of a fair trial under our system of criminal justice. Long ago this Court stated: principle

‘The that there is a of inno- presumption law, in favor of cence the accused is the undoubted axiomatic and its enforcement lies at elementary, foundation the administration of our criminal States, v. 432, United law.’ 156 U.S. 453 [15 Coffin 394, 402, (1895). 39 S.Ct. L.Ed. 481] implement presumption, “To courts be alert to must may factors that undermine the fairness of the fact-find- In ing process. justice, the administration of criminal carefully guard against princi- courts must dilution of 132 probative evidence that is established

pie guilt Winship, In re 397 U.S. doubt. beyond reasonable (1970).” 358, 1068, 1072, 364 25 L.Ed.2d S.Ct. 368] [90 503, 1692-93, 130. 96 at 48 L.Ed.2d at S.Ct. U.S. in the courts, considering issues similar Other when bar, presumption innocence. case at have discussed See, State, 484, e.g., Collins 297 S.E.2d Ga.App. Tolley, State v. (1982); 290 N.C. that, (1976). to bear in mind important It S.E.2d case, in have all one the cases which we unlike this but restraint, in the the issue has arisen discussing encountered In this guilt of or innocence. context of a determination Bowers no of innocence because presumption case there is appeal. trial and affirmed on convicted at the earlier we brought a position in the of convicted felon He stands thus is unlike sentencing. a court for He before trial pre- clothed who at trial stands with ordinary defendant innocence. sumption of of discretion upon an abuse uniformly rely courts in the judges action of trial reviewing

standard for of restraints, in that portion standard noted matter See, v. Billups e.g., Allen already quoted. which have we denied, cert. Garrison, 718 F.2d (4th Cir.1983), 469 665, 667 v. Woodard —, 91, (1984); 83 L.Ed.2d 37 U.S. 105 S.Ct. Perrin, v. Card Kennedy 220, (1st Cir.1982); 222 692 F.2d denied, 416 well, cert. (6th Cir.1973), 101, 107, 110 487 F.2d United (1974); 959, 1976, 40 L.Ed.2d 310 S.Ct. U.S. 94 Samuel, (4th v. 610, 615, States 433 F.2d 663 431 F.2d denied, 401 U.S. 964, 28 946, 91 cert. Cir.1970), S.Ct. States, 911, Loux v. United F.2d (1971); 389 229 L.Ed.2d denied, 151, 867, cert. Cir.1968), S.Ct. (9th 393 U.S. 89 919 869, 156, 21 L.Ed.2d 135, 89 S.Ct. 21 L.Ed.2d and 393 U.S. Hudspeth, 300, (10th v. Odell 302 189 F.2d (1968); 138 denied, 342 U.S. 116, 873, cert. L.Ed. Cir.1951), 72 S.Ct. 96 State, 51 405, 409, v. Martin 286 So.2d (1951); Ala.App. 656 Harding, 278, 288, v. State P.2d 137 Ariz. 670 80, (1973); 84 denied, 465 1017, 1013, cert. 104 383, (1983), U.S. S.Ct. 393 Duran, 16 291, v. People 282, (1984); Cal.3d L.Ed.2d 246 79

133 127 Cal.Rptr. 618, 624, 1322, 545 P.2d (1976); 1328 Elledge v. 1021, denied, (Fla.1981), 408 So.2d 1023 cert. 459 981, 316, U.S. 103 74 Collins, (1982); S.Ct. L.Ed.2d 293 164 485, Ga.App. 506; at Moen, 297 S.E.2d State v. at 94 Idaho 480, 477, 858, (1971); 491 P.2d 861 Daniel, State v. 297 417, (La.1974); So.2d 418 Stewart, State v. 51, 276 N.W.2d (Minn.1979), Coursolle, 61 quoting State v. 384, 255 Minn. 389, 472, (1959); 97 N.W.2d 476 Brown, Commonwealth v. 471, 476, 364 830, Mass. Roberts, (1973); 305 N.E.2d 834 86 164, N.J.Super. 203; 206 A.2d at People Mendola, v. 2 270, 276, 473, 477, N.Y.2d 159 353, N.Y.S.2d 140 N.E.2d 356 (1957); State v. Billups, 607, 611, 301 842, N.C. 272 S.E.2d (1981); Moore, State v. 837, 45 Or.App. 839-40, 609 866, v. State, (1980); P.2d Freeman 556 S.W.2d denied, (Tex.1977), cert. U.S. 98 S.Ct. Simmons, (1978); L.Ed.2d 794 State 26 Wash.App. 920, 614 (1980). P.2d 1317-18

On the issue of discretion Judge Winter explained for the Samuel, Fourth Circuit in 431 F.2d 610: “It is judge] who best equipped to decide [the extent which security measures should be adopted to prevent disruption trial, of the harm to those in the courtroom, accused, escape prevention and the other crimes. E.g., States, Gregory v. United 365 F.2d (8 Cir.1966); 203 States, v. Guffey United 310 F.2d 753 (10 Cir.1962). As matter, a discretionary the district judge’s regard decision with to security for measure[s] subject to limited review to determine if it was abused. stress We that the of discretion is that the judge. district not, He may as is suggested part at one in the record us, before delegate that discretion to the Marshal. Of course, he should consult with the Marshal when other than ordinary security general such as the presence in guards the courtroom is contemplated, may and he rely on heavily the Marshal’s as to may advice what be re- quired since it is the Marshal has in experience who the the prisoners keeping and the provide who must 134 if untoward major responsibility the

guards bear incidents occur. district discretion is be absolute judge’s

“Unless the review, its exercise so the reasons for beyond measures, must be disclosed require special security if there was reviewing may court determine order that a Broyles, United States v. 423 of discretion. an abuse Cf. (4 Cir.1970).” 1299 431 F.2d at 615. F.2d Moen, 94 Idaho 477, 491 is found in explanation Further P.2d 858: for initial responsibility sheriff has some

“Although the an should be handcuffed accused determining whether must, fulfilling his trial, trial judge the during trial, question decide preside over duty 270, Mendola, v. 2 159 N.Y.S.2d People N.Y.2d himself. McKay, State v. (1957); 63 Nev. 140 N.E.2d 353 denied, 63 Nev. (1946), rehearing 165 P.2d 389 discretion, (1946). exercising In P.2d 476 offered and only upon formally evidence rely need not stem may properly knowledge trial. His admitted at officers enforcement from records or what law official addition, v. McKay, supra. In told him. State have of facts generally notice judicial trial court take may State the limits of its jurisdiction. within known App. 49 Ohio Makley v. McKay, supra; (1934). However, upon the information relied N.E. 339 out of the before trial and on the record should be shown defendant should be afford- and the presence jury, of the meet that information.” opportunity to ed reasonable 479-80, P.2d at 860-61. Idaho at Woodard, F.2d courts, as was the case Some such the trial judge the fact that important have seen as them would to determine whether “polled jurors was under fact the defendant by prejudiced fact that a referred courts have restraints.” Other See, judge. the trial given cautionary instruction Mass, 477, 668; Brown, 364 at 305 F.2d at e.g., Billups, 718 N.E.2d at 834.

135 of the courts Many which have considered the matter in to adopt have stated that order security measures it is necessary that the trial judge’s decision upon be based See, at the time of trial. e.g., Kennedy, 487 F.2d at activity 111; Loux, Martin, 919-20; 389 F.2d at 51 410, at Ala.App. 84-85; Stewart, Simmons, 62; 286 So.2d at 276 N.W.2d at 921, Wash.App. 26 at 614 P.2d at 1318. As the court put it Stewart, a “trial judge need not wait for some event to occur the courtroom imposing before restraints.” Leg-cuffs, shackling, other restraints have been upheld others, in, among Billups, Woodard, 669; 718 F.2d at 692 222; 111-12; F.2d at Kennedy, 487 at United States v. F.2d Samuel, 663, (4th Cir.1970), denied, cert. 433 F.2d 664 401 946, 964, U.S. 91 (1971); S.Ct. 28 L.Ed.2d 229 United States v. Thompson, 997, (4th denied, Cir.l970)( 432 F.2d cert. 998 944, 955, 401 91 Loux, (1971); U.S. S.Ct. 28 L.Ed.2d 226 389 920; Martin, F.2d at 410, 51 Ala.App. 85; at 286 So.2d at Harding, 137 Ariz. 288, 393; at 670 P.2d at Elledge, 408 (Fla.); Collins, So.2d at 1023 485, 164 at 297 Ga.App. S.E.2d 506; Moen, 481, 862; at 94 Idaho at Daniel, 491 P.2d at 297 Mass, Brown, (La.); So.2d 477, at 418 364 at 305 N.E.2d at 835; Stewart, Mendola, (Minn.); 276 N.W.2d at 63 2 N.Y.2d 276, at 159 N.Y.S.2d at 356; 140 N.E.2d at State v. Woodard, 970, 974, 121 N.H. (1981); 437 A.2d Billups, 848; 301 N.C. at Moore, S.E.2d at Freeman, Or.App. 867; at 609 P.2d at 556 S.W.2d at (Tex.); Simmons, at 614 P.2d Wash.App. 1317-18.

Illustrative an application opinion of discretion is the in Billups, the Fourth Circuit 718 F.2d 665: “Nor are persuaded we by appellant’s argument record, whole, when as a viewed fails to justify record, shackling. amplified as discovery conducted in proceeding, the habeas reveals that Department, Sheriff’s which normally provides courtroom Carolina, security was, North Bruce found, trial; week of shorthanded the that the addi- uniformed, officers, tional armed who were either in the 136 courthouse, it as- adjacent

courtroom in the were the signed guarding duties other than that court- Billups; area; an that design Billups room made it unsecure average Finally, than an risk. the posed escape more Billups that the in shack- record reveals observed jurors time, Bruce issued Judge appropriate les at most one that that would cautionary Billups instructions to ensure fact, and that taken prejudiced by steps that were Billups not see during jurors ensure that would in 718 F.2d at 668-69. shackles.” 353, 349, 226 S.E.2d is also instructive: Tolley, 290 N.C. fact of defendant’s addition to the uncontroverted “[I]n decision, court, its making in escape attempt, prior twenty- it the that defendant was a also had before facts male, good physical health and apparent five-year-old condition, that the rapes, two charged who was with during the sheriff, of defendant charged custody with the trial, necessary. shackles were was of the that opinion Furthermore, sug- as defendant although possible, it security might have precautions gests, necessary guards use of armed rather accomplished by the been at shackles, reflects that defense counsel the record than In such alternative measures. suggested any no time fact, less opposed for shackles as to some the need 290 not controverted.” security means of restrictive 226 S.E.2d 369. N.C. at (Fla.), is the case we encoun- only 1021 Elledge, 408 So.2d which was made was shackling objection tered where original death In that case the sentencing proceeding. at a Florida Court of by Supreme vacated had been sentence as in the case at bar. sentencing remanded and the case of Florida said: Court Supreme the sen before appearance that his “Appellant asserts jury’s prejudice irons led tencing jury leg deal with the prejudice concern such Cases which mind. the ac upon restraints have effects that such adverse Kennedy v. Card- See innocence. presumption cused’s denied, Cir.1973), cert. (6th well, 487 F.2d 101, U.S. 94 S.Ct. (1974). L.Ed.2d 310 But appellant did not stand before the sentencing as an man; innocent rather he stood a confessed murderer of three persons. The critical issue in a restraint case is degree of prejudice caused Here, restraints. we can very find little prejudice since the appellant was an dangerous avowed individual. See United States ex Henderson, rel. Stahl v. (5th 472 F.2d Cir.), cert. denied, 411 U.S. S.Ct. 36 L.Ed.2d 694 [93 2166] (1973). Second such restraints are within the sound dis court, cretion of the the record indicates the judge had information that the appellant had threatened to attack his through bailiff. Elledge his confessed acts had proven himself a man of his word when violence was threatened, pressed so we would hard be to find the trial court abused its discretion in taking such precautions.” 408 So.2d at 1022-23. Roberts,

This case is unlike N.J.Super. 206 A.2d 200. There the judge trial indicated that because the sher iff had for asked he “had shackling to do it.” One of the cases relied DeVasto, Commonwealth v. upon by Bowers 7 Mass.App.Ct. (1979). 387 N.E.2d 1169 The trial judge there was found to placed have “inordinate consideration on incident____ two newspaper alleged accounts of the There no indication that judge sought the the recommenda [was] tion of official any charged with custody the of the prisoner toas what security might measures necessary____ be The record no the inquiry by judge the into crucial show[ed] risk might issue whether existed that the defendant escape during Mass.App.Ct. trial.” at attempt N.E.2d at other are cited one by 1172. Numerous cases the generally inapplicable. side or other but we find them regard We do not that no shackling place the fact took notwithstanding the trial that some of controlling, first as making upon judge the conduct which the relied request decision took trial. No place prior of made trial. At time that trial shackling at that upholding there had been no decision this Court by a of of murder. we have here is case conviction What different conditions upon mature reflection based somewhat might necessary. of a different view what prompting 87, 45, since its enactment (1957) unchanged Art. Code § “The provides, of sheriff 5 of Acts by Ch. custody by committed to his keep persons shall all safely due discharged are persons by until such authority lawful responsibility was vested with of law.” sheriff course responsibilities of his discharge In the course here. to the trial decision for recommendation his office made a judge. him whose con- had an individual

The trial before each degree kidnapping murder and had for first victions appear garbed He did not with appeal. on been affirmed awaiting as convicted felon innocence but presumption of clear, he makes sentencing report As judge’s sentence. with Bowers difficulty institutional previous was aware personality by reflected Bowers’ problems said at trial and that which was own judge’s observations officer. probation judge’s for the prefer we would the bases Although stated, explicitly more have been somewhat conclusions to trial exercised discre judge it that the plain we believe on Bowers leg should be determining tion in that irons by solely he was not influenced the time of during find no abuse of the sheriff. We the recommendation discretion. affirmance on this reason for an

We see another yet In that has been shown. prejudice and that is issue 182, 190-97, A.2d v. 246 Veney as 251 Md. such cases denied, 89 S.Ct. cert. (1968), 394 U.S. 573-76 State, and Seidman (1969), Md. L.Ed.2d denied, cert. (1962), 323-25, 374 U.S. 187 A.2d 120-21 (1963), have found 1696, 10 we 807, 83 S.Ct. L.Ed.2d caused prejudice out adequate voir dire screen was jury in the area from which pretrial publicity that, be ade- certainly If should adequate for it drawn. quate for selection of a untainted with prejudice be- cause of a shackling. defendant’s Only one juror indicated shackling would influence him and that juror excused.

2. Principal in degree the first This contention sparked is aby note the jury sent during the course of its deliberations which it asked the trial a define principal degree. first At the outset of the jury instructions he had told the jury:

“The paper you have is Findings and Sentencing Deter- mination.

“The matter before you whether the defendant should a receive life or death sentence. question

“The first to be answered is whether the defendant was principal a in the first degree to the murder that has been found have been committed in this case.

“To find that the defendant is principal a in the first degree to you that murder must find alone, that he or others, with assistance of committed the act or acts which resulted the victim’s death.

“Now, in order to prove that the defendant was a principal in the first degree enough it is not to show that he may have aided or assisted or even encouraged the actual killer or that ‍‌​​​‌​​​​​​​​​​​‌​‌​​‌‌​​​​​‌​‌‌‌‌​​​​‌‌‌​‌‌​​‌‌‍he have may driven the car or acted look out that he may principal have been a in the degree first to some other crime that may have been during committed this occurrence.

“In for you order to even consider the death penalty you unanimously must find beyond reasonable doubt that this defendant actually committed the act or acts case, which resulted in the victim’s death this one Monica McNamara. ’ therefore, “And the first question, that must be an- swered, is this.

140 defendant, Jerome find Marselle

“Do that you Bowers, degree to the first principal a in the first was murder of Monica McNamarа? degree yes, is then question you “If to that your answer remaining contained questions answer the proceed paper.” this in rele- by Bowers stated requested

The instruction part: vant you can even instructed that before

“You are further case, you in this must deter- death penalty consider the defendant, a Marselle Bowers is or not mine whether in the murder of the victim. degree in the first principal must unani- you one of every That means that each Mr. doubt that Bowers beyond reasonable mously agree victim his own hands.” strangled the with actually defense counsel presented jury’s question When argued: they instruct that asking

“All that the Court we are was in- physically his hand by that he own must find killing her. volved I is there. think that that he was present

“Not just lies.” the confusion where to that which he instruction similar judge gave an Due was taken exception given originally. had instruction. 309, State, 284 396 v. Md. rely upon parties Pope

Both said for the Court: (1979), Judge Orth 1054 in which A.2d actually is the one who degree in the first principal “A hand, by or an crime, either own by commits A agent. innocent human agency, an inanimate actually or is one who is degree in the second principal committed, felony when a constructively present v. Camphor in its See or abets commission. aids who (1963); 205, A.2d Thorton v. State, 203, 196 75 233 Md. (1963); Veney A.2d v. 617 232 Md. (1961); Agresti A.2d 171 State, 225 Md. (1967); W. 280, 234 A.2d State, Md.App. 141 Blackstone, *34; Commentaries Marshall, Clark & A Treatise on the Law of (7th Crimes 8.01-8.02 1967); ed. §§ L. Hochheimer, Crimes and Criminal Procedure 31-32 §§ (1st 1897); ed. Perkins, R. Criminal 656 (2d Law and 658 ” 1969).13 ed. 284 326, Md. at 396 A.2d at 1064-65.3 Ward, Accord State v. 189, Md. 197, 1041, 396 A.2d (1978). Bowers argues that R. Perkins and Criminal Boyce, R. Law, (3d 1982), ed. states that “a principal in the second degree is one who did not commit the crime with his own hands----” That must be in placed context. What the text says is:

“1. PRINCIPAL IN THE FIRST DEGREE

“The distinction between principals in the first and second degrees is a distinction without a differ- ence except in those rare instances in which some unusual statute provided has a penalty different for 3. In footnote at the end just of that which quoted, we have the Court said: “13. states, Maryland, We many have observed: ‘In as in other practical is little principal there between difference in first the degree,’ and second and we characterized such difference as ‘a shadowy distinction.’ Vincent v. 220 Md. n. (1959). Marshall, A.2d 898 Clark & A Treatise on the Law of Crimes (7th 1967) ed. point: the elaborated recognizes punishment ‘The common law no difference the principals degree, regards between the first and second but subject punishment. In equally guilty, to the as and same them charg- practice is immaterial and on an indictment the distinction degree, may be on ing principal in the he convicted one as first present aiding abetting, and showing that he and evidence conversely. may degree be principal law a in the at common second ‘And principal first and before trial indicted convicted acquitted, or an after he convicted of degree, and even has been degree, though of the act of lesser commission offense degree proved in principal must be order to convict in the first 8.05, aiding abetting.’ p. at 521. § Id. one plain ‘unless it is statute, from the nature 37-38. And See Hochheimer §§ provisions felony by that the of the of an offense made only actually committing party were to affect statute intended offense, punishable.” abettors Clark & aiders and are Marshall 8.04, p. 284 Md. at 396 A.2d at 1065. 520.” A in the principal the other. one these than the crime perpetrator immediate is the degree first is one who did degree in the second principal while a own hands but was the crime with his not commit added, It principal. may abetting present Miller, one may Mr. Justiсe in the words of hands, crime, with his own but only a perpetrate chemical mechanical or agency the ‘through or means, instruments, powder, by or poison as by child, animal, agent’ acting or other innocent an direction. under his degree, in the first as principals may joint

“There be beating, of another by or more cause the death where two both, all, means, in or or other which stabbing, shooting however, a while a If, one holds victim participate. knife, the stabber only with a injury second inflicts a fatal stabbing the degree, in the first because principal is a aiding, thus holding merely caused the death and in second as a guilty principal the holder rendering Id. at 736. (Emphasis original.) degree.” Foster, M. upon relies statements Bowers For similar Law Marshall, (1762), Crown Cases Clark Criminal 1967), Wharton’s (7th and I Crimes § 8.01 ed. 1957). (Anderson ed. Wharton Procedure Law and states: felonies, treason, or misdemean- crimes,

“In all whether in the first ors, principals is made between a distinction degree. and second commits degree actually in the first

“The principal an the hand of by hand or crime, either his own by place at the scene of presence His agent. innocent in the first essential, principal as the is not the crime harm cause the of events which start a chain may degree guilty is as Thus, though absent person a in his absence. for poison when he leaves degree in the first principal person, insane agent, innocent an victim, an or sends his commit capacity, to to have criminal too young or a child crime. “It is stated that frequently principal in the first degree must be either physically or constructively present scene of criterion, the crime. This is not a useful the principal in the degree first need actually not be present, and order determine when his absence will regarded be presence constructive it is necessary resort to the definition first stated of whether the absent principal in fact committed the crime own hand Id. at 230-32. that of an agent.” innocent We have often Judge said what Digges observed for the Foster, State v. Court (1971), 263 Md. 283 A.2d denied, cert. 406 U.S. 92 S.Ct. 31 L.Ed.2d 818 (1972):

“It is a well established rule that when objection raised instruction, court’s attention should not focused a particular on portion context, lifted out of rather its but adequacy is determined by viewing it as a whole. Alston v. Forsythe (and therein) 121, cases cited 226 135, Md. 172 Christ v. Wempe, (1961); A.2d 474 627, 639, 219 Md. 150 Kaiser, Reindollar v. (1959); A.2d 918 314, 195 Md. State, Shotkosky v. 319-20, 73 A.2d (1950); 493 Md. 8 State, 492, 508, v. App. (1970); 261 A.2d 171 1 Graef 161, Md.App. 171, 228 (1967).” 397, A.2d 480 263 Md. at 283 A.2d at 415. State, Thomas v. like

To see 294, 315, effect 301 Md. 483 — denied, 6, (1984), cert. A.2d 17 —, 1856, U.S. 105 S.Ct. State, Mack v. (1985); 583, 598, 85 L.Ed.2d 153 300 Md. 479 State, 1344, Poole (1984); 186, A.2d 1351 295 Md. Mueller, and Clayborne v. (1983); 453 A.2d 1228 266 30, 40-41, (1972). Md. 291 A.2d 448

We do not know whether strangulation victim here or ligature. ligature was manual Instances of See, e.g., Johnson v. strangulation are known. 303 — denied, cert. (1985), —, Md. A.2d 1 U.S. (1986). S.Ct. 88 L.Ed.2d A in the principal first degree clearly responsible would include an individual for a ligature strangulation. by The instruction prayed Bowers

does not make absolutely clear that it includes a ligature strangulation. Viewing the instruction given whole, court as a we find no error.

3. Non-statutory mitigating factors requested Bowers the trial court to instruct the jury: “In addition to the mitigating circumstances that the legislature given has you—that is not an all-inclusive list. You must under the law consider any other factors or circumstances you which set forth in writing as mitigat- ing case, circumstances this any other factors and you circumstances which consider to be cir- mitigating cumstances in this case.

“The defendant has asked you consider such things willing that he is spend rest of his life in prison; good that he has prospect productive for a life in prison; personal his background; that he was in the service overseas; served on impact year his old daughter; completed service; that he GED while and any other circumstances which you list which in writing your judgment constitute mitigating circumstances in this again, case. So anything you find to mitigating circumstances, if you find that they proven by have been preponderance evidence, of the you would check that item on the list.”

Bowers a verdict sheet proposed which would have read: exist, mitigating circumstances as are set forth

“Other below: family Supportive strong religious “8. background. _ _ yes no Military “9. service. _ _ yes no Negative impact “10. of service and divorce. _ _ yes no Drug “11. and alcohol use. _ _ yes no Anguish family. “12. _ _ yes no Prospect productive prison. “13. for a life in yes no “14. Marselle Bowers’ remorse.. yes no It is to be noted that specifically on Bowers’ version of the provision verdict sheet there would have been no for the finding jury’s mitigating additional factor or factors. The trial he “prepared said had the sheet and the says rule it shall in the form as set out in the rule.” He argument: said after further

“THE COURT: or Fortunately unfortunately they de- termine weight receive, how much are they supposed Court, not the not you.

“You argue importance as to their they but consider they ought whether are factors that to be considered. “I mean you are to me I am saying asking you put this verdict sheet factors that must consider in they determining whether there are mitigating circumstances and that is not what the requires statute and that is not what the rule says.

“The rule says any mitigating other circumstances they feel has some bearing on the they sentence consider and list them that report.

“Too, I think that they may disagree you. Thеy with well, may say we don’t think this is a mitigating circum- stance. saying asking

“You are to them and are me to you circumstance, instruct mitigating them that this is a consider, which you ought you yes either find it no, to exist. is,

“And the the statute is and the the rule it way way is a mitigating they circumstance that must find is fact circumstance. We don’t that to them mitigating give mitigating you this is a circumstance and either say find it or it does does exist not. isn’t the in the statute. purpose provision

“That of that whether it “They determine is if it mitigating, does exist, it is a mitigating circumstance.” He as to the verdict sheet: instructed II,

“Then, in are to you Section consider the seven circumstances that are listed and there specific mitigating forth you under No. 8 which allows set provision you other circumstances which find exist mitigating your and which conclude are relevant to consideration you in ought imposed as to sentence to be this case. what give mitigating am a definition of going you “I can do as the law contem- you circumstances so that plates.

“Consider any other mitigating circumstances which you find to exist which mitigating circumstances are in addition to those specifically in enumerated Section II which deals with mitigating circumstances. The defini- tion that I give will you is that contained in Black’s Law Dictionary, which is pretty uniformly accepted as the standard legal in the field. The definition in Black’s Legal Dictionary is follows:

“ ‘Mitigating Circumstances: Such as do not constitute or justification excuse in but which fairness and mercy bemay considered as extenuating reducing degree punishment.’

“You see from that definition that a mitigating circum- stance does have to justification constitute a or an act, excuse for the commission it but is a circum- stance which fairness mercy you may consider as reducing degrеe punishment in the case.

“Also, I point out to that you it is necessary prove State the aggravating circumstances listed Sec- tion I and the defendant must prove the cir- mitigating cumstances as set forth in Section II.” erred refusing contends that Bowers He relies proposed mitigating consider circumstances.4 Johnson, (1979). State upon N.C. S.E.2d 597 There court said:

“If, however, a for timely request a defendant makes a in possible mitigating circumstances, listing writing of evidence, supported by the and if these circumstances are reasonably such that the could deem them to jury have value, opinion are of mitigating we that the trial put must on the such circumstances written list. legislature give “The did not intend mitigating those circumstances in the expressly mentioned statute primacy in might over others which be included other ‘any provision. intent, existed, circumstance’ if Such an it Ohio, run supra, Lockett v. might afoul of 438 U.S. 586 In Lockett Ohio’s death S.Ct. 57 L.Ed.2d [98 973]. statute was found penalty unconstitutional under Eighth and Fourteenth Amendments because the Ohio sentencing ‍‌​​​‌​​​​​​​​​​​‌​‌​​‌‌​​​​​‌​‌‌‌‌​​​​‌‌‌​‌‌​​‌‌‍could authority only consider three mitigating and factors none concluded, other. The Supreme Court id. 604-05, 608: S.Ct. at [98 2964-65] the Eighth

‘that and Fourteenth require Amendments sentencer, that the in all but the rarest kind of capital case, not be precluded from considering as a mitigat- ing factor, any aspect of a defendant’s character or record and of the circumstances of the offense that the defendant for a proffers a basis sentence less than death---- The need treating for each defendant in capital case degree respect with due the uniqueness the individual is far more than important cases____ non-capital in of correc- nonavailability tive mechanisms modifying respect with to an exe- capital cuted sentence underscores the need for individ- argued jury for 4. Counsel Bowers to the counsel to be what believed mitigating circumstances not listed on the trial court form. The mitigating points argued, found as circumstances two of so military Germany impact service in and the of his divorce. ualized requirement consideration as constitutional in the death sentence. imposing ‘There is no perfect procedure deciding which governmental cases should be used to authority impose But a prevents death. statute that the sentencer in all cases from capital giving independent mitigating weight aspects the defendant’s character proffered record and to circumstances of the offense creates the risk that the death mitigation penalty will of factors imposed spite may which call for a less penalty. severe When the choice is between life and death, unacceptable that risk is and incompatible with the commands of the Amend- Eighth Fourteenth ments.

‘To a requirements, penalty meet constitutional death preclude statute must not consideration of relevant mitigating, (Emphasis original.) factors.’ Lockett A sections of quoted provides, footnote to the in this limits the traditional ‘Nothing opinion authority of irrelevant, exclude, court as evidence bearing a on character, record or circum- prior the defendant’s Id. at 604 n. 12. stances of his offense.’ S.Ct. at [98 2965 n. 12]

“Under Lockett legislature provide a would be free to mitigating the existence of certain factors would preclude imposition penalty, of the death while the considered, simply existence of others should be but not A controlling, question. penalty on the death sentenc- statute, however, or the manner in ing by which its terms it is some circumstances in applied, puts mitigating which might and leaves others to the recollection writing jury’s reasoning under the of constitutionally impermissible Lockett. sentencing pre- For if the cannot be authority considering mitigating cluded from relevant circum- stance the evidence neither should such supported by in manner circumstances be submitted to it which makes seemingly some less worthy consideration than others.

“Thus legislature we are satisfied that our intended circumstances, that all mitigating both those expressly mentioned the statute and others which might be 15A-2000(f)(9), submitted under G.S. be on equal footing before the If jury. those which are mentioned expressly are in writing, be, submitted as we believe should they then any other relevant proffered circumstance by the defendant as having mitigating value which supported the evidence by and which the jury may deem reasonably must, to have mitigating value upon defendant’s timely request, also be in writing. submitted

“Since, however, defendant made no specific request to include possible ‘other mitigating circumstances’ on the written and, verdict form submitted likewise, to the jury made no timely request to include good defendant’s char- acter as mitigating circumstance, we find no error actions the trial failing to do these things.” 298 72-74, N.C. at (Foot- S.E.2d at 616-17. omitted.) in degree. specifies murder the first It before whom the conducted; proceeding admissible; is to be the evidence factors; what are to aggravating be considered as defini used; tions of terms procedure the be followed if no aggravating exist; circumstances are found to mitigating may circumstances that be considered in including, addition listed, to those other facts “[a]ny which the or the jury court specifically writing sets forth in it that finds case,” in mitigating (l) circumstances the etc. Subsection states:

“The Court of Appeals may adopt procedure rules of govern conduct of a sentencing proceeding conducted section, pursuant this including forms to used any be the court by jury making findings its written determinations of sentence.” Maryland 4-343(e) Rule adopted pursuant to that au- thority addition to the general authority with which we are vested under the Constitution. 4-343(e)

Rule findings “The and determinations says, [by the sentencing authority] writing shall made in in the form,” following goes and then on to set forth the form. The last II is: part of Section form specifically mitigating “8. Other facts set forth below constitute cir-

cumstances:

yes no (Use necessary)” side if reverse not have as set forth proposed by

That Bowers would been 4-343(e). in Rule Assembly

The General has determined that certain Then, mitigating if constitute circumstances. proven facts Lockett, for the provision has been made response a proven by to list other facts sentencing authority any in the authority’s of the evidence which preponderance factor. To instruct mitigating constitute a judgment by would be a determination requested as Bowers if by jury by listed found court that the facts Bowers were entitled to be con of the evidence preponderance do not circumstances. We believe mitigating sidered form, such. The statute, contemplate or Lockett it, that the itself set is, simply jury may see intention as we form which it listed on the submitted forth facts not We find no error. mitigating factor. believes constitute question 4. The of parole The jury during course of its deliberations sent a questions series of to the trial The first judge. one was: “Life Imprisonment parole.” how until many years judge responded: “This question cannot be answered decision your must be made based on the factors contained in the paper Findings entitled & Sentence Deter- mination.”

At trial counsel for Bowers asked the the jury court “that be instructed that for the purposes of their determination a sentence, life sentence to imprisonment life means a sen- imprisonment tence to life are to they follow that.” To argued us it is that it is not improper jury, to inform the defendant, request of the that the event of a life sentence the defendant eligible parole will not be until he has served a certain number of that the defend- years; ant “is not under the same regard- restrictions the State ing the of information type that he wish the may consider, for while the State in proving aggravating circum- stances is limited to a showing that one or more of the aggravating circumstances specifically listed under Art. exists, 413(d) sec. ... the defendant may prove any mitigat- ing Bowers.) circumstances.” (Emphasis He further argues, “Additionally, de- although possibility fendant will be is paroled not a relevant concern if clearly executed, is, should the defendant therefore be the question (1983)], 295 Md. 453 A.2d 1218 it does Poole [v. paroled seem that the fact that the defendant will not be passed until a certain has is a relevant years number is, if the should the defendant therefore question concern (Emphasis original.) not be executed.” 413(c)(1) (1957, 1982 Art. Repl.Vol.) Code states: “(1) The in this following type of evidence admissible proceeding:

“(i) relating mitigating Evidence circumstance (g); listed in subsection

“(ii) relating any aggravating Evidence circumstance (d) listed in subsection of which the has notified State 412(b); pursuant defendant to § convictions, “(iii) pleas any prior Evidence of criminal contendere, prior or nolo or the of such guilty of absence the same admissible in pleas, convictions to extent sentencing procedures; other “(iv) investigation However, Any presentence report. as to sentence contained the re- any recommendation admissible; is not and port of “(v) proba- other evidence that the court deems Any sentence, and relevant to the defend- provided tive value opportunity ant is accorded a fair to rebut state- ments.” State, (1983), Poole v.

In Md. 453 A.2d 1218 inflamatory faced prosecution’s argu- Court was with the pertaining parole. Judge to the to Couch said ments Court: view, “In our reference to the of future possibility and, remand, again upon should parole improper of the issue previously be made. We have addressed prosecutor commenting possibility of the on the propriety such are improp- of held that comments parole clearly A.2d er. See Shoemaker v. Md. Shoemaker, (1962). Judge In Chief Bruñe stated: to in the regard parole ‘The statements with context here, think, we exceeded the they which were made permissible by prosecutor. limits of comment This occasion, as we are in- has never had as far Court formed, to remarks re- question consider the whether remarks, or similar constituted lating possible parole, course, good a each depends reversible error. Of case facts, may its even where the remarks fall deal on own same References general into the classification. appeal, possibility of of right prosecutor have, defendant parole clemency executive courts. Al- however, other by many been considered that the each think way, there are decisions we though better reasoning and thе weight of are authority against the propriety of such arguments. One reason in support of what we think is the better rule is that arguments should evidence, be based upon the but the principal objection arguments of type goes this even deeper and is exemplified, we think in the present case.

‘The chief vice of the reference in this case to the possibility parole is that it suggested to the jury that might it in part shift its responsibility for a finding of the defendant’s to some other guilt body.’ Id. at 468- (numerous 180 A.2d at 685 omitted). citations In case, the instant we believe this type argument likely allow the jury to disregard duty its to determine aggravating and mitigating factors, and to then balance one against the other as required (1957, by Code 1982 Repl.Vol.), 27, 413, Article before imposing the death § penalty. Any consideration of the possibility parole as such simply is irrelevant and obviously prejudicial; we cannot condone argument.” such 196-97, 295 Md. at 453 A.2d at 1233.

Evidence as to length of time an might individual have to serve under a life sentence before becoming eligible for parole not, would view, our be “of probative value ____” and relevant to sentence Under the statute such evidence thus would not be The admissible. responsibility of the is jury weigh the aggravating and mitigating factors and to determine whether the sentence should be death or life imprisonment. The actual length time one might have to serve under a life sentence is no more relevant to that determination than the means which the would impose State use to penalty death or whether might there proceedings subsequent be court to the deter- mination of sentence by way appeal, post conviction or federal habeas corpus. 41, 122(b)(1)

5. Application of Art. § At the time the offense the case at bar was committed (1957, 41, 122(b) Code 1978 Art. Repl.Vol.) provided that a § to life was “not person imprisonment sentenced [to be] for he eligible consideration until served parole ha[d] or the of 15 the allow- years equal years considering when provided period ance for diminution of of confinement for 27, 27, and Article 638C----” The General Article 700§ amended this Ch. 298 of the Acts of Assembly section 1983, that person effective such a July providing years. should not be until he had served eligible twenty-five advised the Governor relative to the Attorney General will year apply only statute “that the new 25 minimum for inmates to life occur- imprisonment sentenced crimes application other would Any on or 1983. ring July after of the violate the ex clauses United States post facto Constitution____” his.) (Emphasis Zerbst,

Bowers asserts under Johnson v. (1938) accused U.S. 82 L.Ed. “an S.Ct. fundamen intelligent knowing make an waiver of may Thus, he says may tal he waive protections.” constitutional ex here. He contends that post protection facto before consideration willingness twenty-five years to serve is take might factor which parole mitigating at all. way into We do not see it that consideration. attempts bargain to do is to with What Bowers That would not have sentencing authority. authority or when should right ultimate to determine whether Bowers our permitted under paroled. We do not believe this sentence statute. death report

6. The autopsy 5-311(d), (1982) provides: Health-General Article Code subsection, “(d) Evidence.—(1) In ‘record’: this “(i) Means the result of a or of or an view examination autopsy on a body;

“(ii) or Does not include a statement of a witness other individual.

“(2) Medical Exam- A of the office of Chief record examiner, if by medical made any deputy iner оr anyone under the medical examin- by medical examiner or er’s control, direct supervision or a certified transcript record, that competent is in in evidence court this State of the matters and facts contained it.” At the sentencing proceeding the State moved to intro duce the “full autopsy report and that are photos attached thereto.” The defense objected on the that grounds certain portions missing. stated, were Counsel “Subsequent to the first hearing Mr. Bowers ... wrote to the Medical Examin er’s Office, response and in request they sent him a copy this, which is the complete noted, It was autopsy.” for instance, that presented the exhibit to the court had six only while photographs what was sent Bowers had thirteen.5 It was claimed the certification was inaccurate. The trial judge said:

“This is report according the official to this that has been sent to the which is Attorney, State’s admissible under the statute. The statute provide doesn’t that the admissible, entire that records of Office are says it report which admissible, is submitted Office and that is have what we which is certified in accordance with the statute.

[*] ^{[*] [*] [*] [*]} sfs “This with conforms the statute. The objection is overruled.” pointed Bowers,

We out 298 Md. at 468 A.2d discussing Bowers’ that an autopsy contention of the ex report by the medical unaccompanied testimony right aminer it violated his constitutional prepared who him, admitted that against confront witnesses “Bowers she autopsy report deem the strangled.” properly We not, however, were statute. Even if it admissible under the wanted, among We Bowers seems to have other 5. observe that here report things, pictures post-mortem but in more from the Bowers v. 115, 135-36, (1983), he was 298 Md. 468 A.2d 111-12 post-mortem оbjecting any photos part as a of the the admission report. in the light of Bowers’ admission this would be harmless error. 276 Md. Dorsey (1976). 350 A.2d 665 7. supplemental Bowers’ briefs Bowers has submitted what he has entitled “Petition for Mandate, Prohibition, Alternative Writ of Mandamus or Certiorari and Supporting Authorities.” This was sub- mitted in proper person after oral argument. We choose to treat it as a supplemental brief. quotes (1957,

Bowers Code 1982 Repl.Vol.) Art. 413(d)(10)listing factor, as an aggravating “The defend- § ant committed murder while committing or attempting arson, to commit or robbery, rape or sexual offense in the out, first He degree.” points “The evidence in the instant nature, case was of a circumstantial based primarily upon Petitioner, statement allegedly given by the Respondents proffer no eyewitness accounts of the crime into evidence.” He then that the says “ignored State has the mandatory and specific language” 413(d)(10), of Art. stating “that alone, of the wording statute takes or his crimi- places nal his.) case its beyond perimeters.” (Emphasis He as- serts that under the evidence murder was not com- “[t]he mitted ‘committing ‘while’ or attempting any commit’ crime language statute,” listed of the “[t]here a distinct separation between the ‘murder’ and infer- any ence of the commission on crimes listed [sic] statute,” that none of the crimes listed are continuing his.) Thus, crimes. (Emphasis he asserts that the statute is not ambiguous and that it indicates “in order to sentence death, a criminal defendant obligated the State is to show evidence) (by that the murder and crimes relied from upon (‘... the statute are to merged committing murder while commit____’) under attempting to otherwise sentence the laws of would Maryland imprisonment.” be life 152-56, in Bowers,

We observe first of all that 298 Md. at 120-22, 468 A.2d rejected argument we an that the trial in excluding еrred from the jury’s consideration rape degree or first sexual offense as an aggravating factor a based on claim that there was insufficient evidence. We

said: the screams,

“Given evidence to a woman’s the victim’s abduction, semen, the presence forcible of erythema, the death, statement, the manner of and Bowers’ own there clearly was a sufficient evidence for rational of trier fact to determine beyond reasonable doubt that Bowers was of first guilty rape degree of sexual offense toas this 156, victim.” 298 Md. at 468 A.2d at 122.

Bowers’ contention that the circum aggravating is inapplicable stance because he did not murder the victim while in the act her in raping appears of be unique this A considered, State. similar has however, contention been State, Georgia, in In Romine v. whose statute is similar. 208, (1983), 251 Ga. 305 93 S.E.2d defendant first murdered his Then mother. after what was believed be passage of more he two or hours murdered his father. The court said:

“[Ajppellant that since two in contends murders this simultaneous, case were not one was not committed while engaged the offender was in the commission of the other. (b)(2) agree requires We do not simultaneity that with regard action to the two offenses. Gilreath v. State, State, v. 422, Peek supra; 431, (238 239 Ga. S.E.2d Peek, 12) (1977). As in murders this case ‘were committed by appellant relatively period short of time in what can be viewed as fairly one continuous course of Thus, case, criminal conduct. under the facts of this finding was authorized first murder was committed in the course the second murder.’ Ibid.” 214, 251 S.E.2d at 99. Ga. 305 State, To similar effect see Roberts v. 227, 252 314 Ga. denied, 83, —, cert. 228, 469 105 S.E.2d U.S. S.Ct. 83 State, (1984); 837, 157 Gilreath 814, L.Ed.2d 247 Ga. denied, 650, cert. (1981), S.E.2d 456 U.S. 102 S.Ct. Peek v. (1982); 422, 431, 72 L.Ed.2d 862 239 Ga. (1977), denied, 99 S.Ct. 238 S.E.2d cert. U.S. (1978). this contention to 58 L.Ed.2d 194 We deem merit. without

b he entitled “Motion for Bowers has submitted what hаs or in the Stay Reconsideration and of Issuance of Mandate This, a Motion for Limited Remand on Issues.” Alternative too, in proper person argument. was submitted after oral supplemental choose to treat it as a brief. We likewise points Bowers out: case, in the stage proceedings

“At instant every an free and alledged voluntary has used Appellee [sic] legal raises a Appellant, clearly statement of the which Question (Issue) of Jury foundation for the Defense and ” (Emphasis original.) ‘Intoxication.’ on to state: goes He then Counsel(s) representing of

“Through inadvertance [sic] of no defenses were Appellant phases litigation, at all made rela- no for instructions were presented, requests issue, (below) this The Court did not pertinent tive to intoxication and no was Appeal instruct on the issue of on the issue.” advanced mitigating that “intoxication is both a

He further observes of negation could render factor and an element which Degree element in First Mur- an essential ‘premeditation’ of the der, Jury all to the their deliberations germane ” facts.’ He contends: ‘Law and given for such an instruc- requests “Because no were given impor- in fact on this tion and no instruction were issue, not and could not decide Jury properly tant did Appellee and The and facts’ of the instant case ‘the laws instruc- (State) proof by of its was relieved burden tions.” concedes, not raised and point was

As Bowers Hence, point Rule 885 the is not under decided below. other circumstance only for our review. preserved which we could review the matter under the provisions 4-325(e) Rule (formerly 757h) Rule providing, that an appel- may, discretion, late court in its cognizance “take of plain error in instructions, rights material to the of the defendant, despite a failure to object.” Our cases make however, plain, we will not ordinarily up take allega- tions of “plain if, error” Judge as it Horney put for the 319, 324-25, Court in 219 Md. Reynolds 149 A.2d (1959), “the errors complained are such that the trial court could undoubtedly have—and would have—cor- if rected interposed defendant had objections, as h[is] done, have should before the jury retired to consider its []he verdict.” We decline to take cognizance of the alleged here, error particularly even where Bowers is so uncertain whether there error as to suggest that we pursuant “remand the case to Rule 871 for an evidentiary hearing determine if Jury Issue/Question Genuine exist, exists and if it is found to should a New Trial be Granted.”

8. Proportionality review Bowers was born November 1951. The incident in question place took on or Thus, ‍‌​​​‌​​​​​​​​​​​‌​‌​​‌‌​​​​​‌​‌‌‌‌​​​​‌‌‌​‌‌​​‌‌‍about 1981. July he was just years under 30 of age at that In Bowers, time. Md. 468 A.2d we said: “The autopsy report sperm established present that was in the victim’s vagina and anus at the time of her death. Moreover, the of report showed evidence anal lacerations and localized erythema. conclusively It established that strangled she was to death.” 298 Md. at 468 A.2d at 122.

The found as an jury aggravating factor that “[t]he defendant committed the committing murder while or at- tempting rape to commit in the robbery, degree, first or sexual offense in the first degree.” mitigating As factors jury found that Bowers had not found previously been guilty violence, of a crime of had a plea not entered of or of guilty charge nolo contendere to a of a crime violence on probation stay entry had not granted been violence; charge of a crime of that pursuant judgment not the sole cause of the proximate was the act of Bowers “8,” death, and, “[ojther under facts set specifically victim’s circumstances,” mitigating name- forth” which “constitute in “impact of Divorce.” Germany” of service ly, “impact indicated, jury’s As sentence was death. of our in this case have con- process

In the review we under reports judges each of the submitted sidered deem to eight 4-343. selected which we be Rule We have 414(e)(4). Art. contemplation “similar” within of his Julius old at the time Bailey. Bailey years was graduate stu- kidnapped University offense. He a Catholic parking toward her car on a lot walking she was dent while Her was later discovered an Washington, body D.C. had George’s County. in Prince She isolated area wooded in the head with a .38 calibre and shot twice raped been car, tags, without was discov- Her snow-covered handgun. center lot. shopping parking later ered several weeks that the vic- circumstances aggravating The found as jury in the of a to be taken course attempted tim taken or or abduct and attempt kidnap or kidnapping abduction committing or at- committed while the murder was arson, or sexual offense rape, robbery, to commit tempting mitigating of the established degree. in the first None facts,” however, “other found. Under circumstances were listed: jury miss him. “(1) and friends will Family “(2) family history. Past work). (was

“(3) willing attitude Work “(4) His is a human life. on circumstantial evidence alone.”

“(5) He was convicted in original.) (Emphasis fact, the sen- life In imprisonment. sentenced to jury the sentence tencing form said “determine[d] no jury’s.) the parole.” (Emphasis plus years life with Obviously, attempted sentence was not sanctioned by statute.

Kirk Noble of years Bloodsworth. Bloodsworth was age at the time of his offense. He aby jury was convicted murder, degree degree rape, degree of first first and first 9-year-old girl sexual offense. He lured a into a wooded sodomized, area where raped, he inserted a tree branch into her vagina, and of murdered her. The cause death was severe trauma to the head and A rock strangulation. large or concrete used mass was to cause the head He injury. elected proceeding to have sentencing conducted before who at presided his trial. The court as an found aggravating factor that the murder was committed while committing attempting arson, or rape commit in robbery, degree, first or sexual in the degree. offense first As mitigating factors the judge found that had Bloodsworth not previously and, been of convicted a crime of violence facts,” under “other had of he no violence or other history deviant behavior. The sentence was death.

Elvis Horton. years Horton was 36 of age the time of his offense. He was convicted of rape and of a murder 12-year-old in girl City. Baltimore The Medical Examiner gave the of cause death as strangulation by hands a ligature broad of some kind. Contributing to the death were blunt injuries force on the right side of the victim’s head which could itself, have caused death in and of accord- to the Medical ing Examiner. The victim was found baby basement a rowhouse where Horton lived as a (12 9) A sitter for the two children and of his sister-in-law. deadlocked on so a life im- sentencing sentence was 27, 413(k)(2). required Art. posed John Kevin Johnson years age Johnson. George’s County when he was convicted Prince of mur- der, degree rape, degree first first sexual of- kidnapping, fense, weapon, handgun. a use of a robbery deadly with and He companion kidnapped 13-year-old girl brought George’s District Columbia her to Prince County. raped Property She was and sodomized. in her shotgun taken. Johnson fired a sawed-off

possession was body bridge. blank into her and threw her over a point back Thus, a imposed A life sentence was as jury deadlocked. 27, 413(k)(2). required by Art. years age Johnson of at the

Lawrence Johnson. was He to a gained entry time of his offense. and another inside dwelling through house basement window. Once to the floor went the basement stairs first where they up of the victim. was a they presence discovered She woman, weighing ninety small stature and 78-year-old their for She was home alone. When demands pounds. satisfied, her her were and shoved money they grabbed In course of this spare episode into bedroom. handle, on stomped victim was beaten with a broom brutally kicked, strangled and to death. found jury tied commit- that the murder was aggravating an circumstance committing attempting robbery, or to commit ted while Mitigat- in the first rape degree. arson or sexual offense sole was not the ing circumstances found were that Johnson and that his co-de- cause of the victim’s death proximate to death. fendant was to life. The sentenced sentenced at the years age Oliver was of Hugh Dean Oliver. the facts: of his The trial described time offense. 22, 1980 the morning “In the hours of November early of Stephen subject Lintner was the home Paulette Road, Mary- City, Frederick Ellicott burglary at 10101 Lintner burglary, course Mrs. During land. re- tied, disrobed, assaulted, and beaten, sexually was knifed, death. This occurred resulting in her peatedly Two A.M. on said date. 12:30 A.M. 2:30 between crime, Emerson for the one apprehеnded were persons defendant Baxter blamed the Baxter and the defendant. denied of the victim and the defendant for death Lintner incident Mr. At the time of the being present. employer, on country out of the business States Government.” United The jury convicted Oliver of murder, murder and felony robbery deadly weapon, with a robbery, attempted rape offense, first degree, degree assault, first sexual burglary, and battery. aggravating No circumstances were found. Thus, the sentence was life.

Annette Louise Stebbing. Stebbing years age was 19 at the time of her offense. She was convicted a Harford County jury of murder in the first degree, rape the first degree, robbery, degree and first sexual offense. Stebbing and her husband offered the victim a ride a stop. to bus They all entered a of going van. Instead to stop, the bus Stebbing and her husband took the victim out into Harford County Stebbing where held the victim back of the the van while Stebbing’s husband her. raped The victim was screaming throughout the event so Stebbing placed her hands on the victim’s strangled throat and her to death. After the victim Stebbing was dead her husband turned the over body and the then husband performed sodomy upon victim. They home, slept went van with the it, victim in and carried her body around until the following day when they dumped it into a sewer at Fell’s Point Baltimore City. As an aggravating circumstance the jury found that the murder was committed committing while or attempting to commit robbery, arson or or rape, sexual offense in degree. the first As a mitigating circumstance the jury Stebbing found that had not previously been con- violence, victed of a crime of had not entered a of plea violence, a guilty charge or nolo contendere to of a crime of probation of of granted stаy entry and had been on a pursuant charge to a of crime of No judgment violence. mitigating were found. The to other factors sentenced death. was 17 and 8 years

James Russell Trimble. Trimble months old at the time of his offense. He of a was one group young kidnapped of men who victim 22-year-old gang rape and another woman. After the of the young victim, a Trimble clubbed her with baseball bat and later her throat to make certain that He slashed she was dead. circumstances by judge. Aggravating a sentencing elected a or hostage attempt- the victim was taken found were that course of a or abduction or kidnapping to in the ed be taken kidnap to or abduct and that defendant attempt an committing murder or to attempting while committed arson, or sexual offense in the first robbery, rape or commit a circumstance mitigating The trial found as degree. judge of guilty been found a previously that Trimble had not violence, or nolo plea guilty of had not entered a of crime violence, a of and had not charge to a of crime contendere pursu- or of granted probation stay entry judgment been also found the charge of a crime violence. He ant at the time of the crime youthful age of the defendant Mitigating “8. Other Circum- mitigating factor. Under personality” listed “antisocial stances” the trial The sentence was death. (by history).” abuse “substance (1957, Repl. mandate Code Pursuant 414(e) Vol.) to be considered us Art. factors sentence, find in this case that relative to the we the influence of imposed death was not under sentence of factor; the evi arbitrary other passion, prejudice, finding statutory aggravat of a jury’s the supports dence the 413(d); suрports the evidence under ing circumstance are not aggravating the circumstances finding that jury’s circumstances; the sentence outweighed by mitigating penalty or disproportionate death is not excessive of and the cases, considering both the crime in similar imposed must that the death sentence be It thus follows defendant. affirmed. AFFIRMED.

JUDGMENT ELDRIDGE, Judge, dissenting: ago William sixty years hundred and More than two the settled com- Hawkins, authority, repeated citing earlier “ought brought be an accused rule that mon law Manner; with his Hands tied Bar in a contumelious Ignominy Reproach; Mark of or other together, feet, nor even with Fetters on his unless there be some Danger Hawkins, of a Rescous or Pleas Escape.” of Crown (1716, 1721).1 ago, Just Supreme one month Court of the that, United States unanimously reiterated under the Due Process of the Clause Fourteenth Amend ment, “shackling” is “the sort of inherently prejudicial practice that ... should permitted only where justified by an essential state specific interest to each trial.” Hol — brook v. Flynn, —, 1340, 1346, U.S. 106 S.Ct. (1986). L.Ed.2d 525

The majority today sanctions shackling defendant, at a capital sentencing trial before a jury, based little upon more than the desire of a local sheriff’s office. The Court’s affirmance of the defendant’s death sentence under these cannot, view, circumstances in my be squared with the above-quoted common law and principles constitutional the very with cases cited in the majority opinion.

The principal ground for the majority’s decision its conclusion that the determination whether to shackle a lies defendant within discretion, the trial judge’s and that there was no abuse of discretion in this case. The majority points to Bowers, institutional difficulty with all of which had taken place before his earlier trial when he was convict- murder, ed and to the fact that had already Bowers been found guilty of the murder. problem The chief with the majority’s reasoning is trial failed utterly exercise Furthermore, discretion. there was no factual basis shown the decision to shackle Bowers.

The trial judge, who ordered Bowers to stand fetters before the sentencing was the same jury, judge who had previously conducted trial at which Bowers was convicted. Thus he was familiar with Bowers’s courtroom deportment. No required shackles were at the earlier trial. In century, principle 1. the middle of the thirteenth the same was set (c. 1250). forth in Bracton’s De Legibus Angliae et Consuetudinibus Thorne, See the text and translation 2 S. Bracton On The Laws And (1968). England Customs Of knowledge had that time of Bowers’s behavior

The judge the earlier trial and only difference between prison. had him a memoran- judge is that also before this trial leg irons from the sheriff’s office which recommended dum “escape considered an risk” that Bowers was and stated The judge and his record. prison convictions due counsel that Bow- acknowledged the contention of Bowers’s indicat- been and had committed no acts cooperative ers had Despite signs risk. the lack of fresh that security ing courtroom, judge ruled would turn violent Bowers as follows: is for the concern

“I conclude that there some basis Office, maybe and though given even the Sheriff’s I reach a might set circumstances same of facts conclusion, are nevertheless these individuals different I saying I am not security, and with courtroom charged issue, I decision on the but made a different would have given all the facts and may it be that just saying am I decision. have made a might cirсumstances different “Nevertheless, ought I that I second don’t feel security where there with charged the individuals guess difficulty involving indication of prior been some has Defendant.

(cid:127)jt ^{[*] [*] [*] [*] [*]} conclude, present- that has everything “I based on been me, unreason- being is not that the ed Sheriffs Office instance, and in their decision in this arbitrary or able I I not countermand their feel that should for that reason So that motion security people. court to the direction added). (Emphasis denied.” an of the trial being exercise ruling, This instead that discretion, a determination simply judge’s being arbitrary” was “not unreasonable sheriff’s office office. The responsibility that and an abdication guess he should not “second stated that expressly security.” acknowledged He charged with individuals I reach a might “the same facts circumstances under

167 different conclusion.” It defies logic to view the trial judge’s action here as an exercise of the judge’s discretion. cases,

The including many cited the majority, make it clear that a judge not this may delegate discretion to court security personnel. Judge As Harrison Winter it put for the United States Court of for Appeals the Fourth Samuel, United States Circuit in v. 610, (4th 431 F.2d 615 denied, cert. Cir.1970), 946, 964, 401 U.S. 91 S.Ct. 28 (1971): L.Ed.2d 229 matter,

“As a the discretionary district judge’s decision with to measure for regard subject is security to limited review if to determine it was abused. We stress that the not, discretion is that of the He is judge. district may suggested part us, at one in the record delegate before that discretion to the Marshal. course, he Of should consult with Marshal when other than ordinary secur- such as ity general presence guards the court- contemplated, room is and he on the may rely heavily Marshal’s may advice as to what required since it is the Marshal has whо experience keeping prisoners and who must provide guards and bear the major if responsibility (Em- untoward incidents occur.” phasis added).

To the same effect Cardwell, v. Woodards is 430 F.2d 978 (6th Cir.1970), denied, cert. 911, 401 874, U.S. 91 27 S.Ct. (1971). L.Ed.2d 809 There the trial judge abdicated his discretion entirely, “It saying, up to the Sheriff.” 430 F.2d at 981. United Court of for Appeals States Sixth this ruling Circuit held that constituted a denial of due See, Moen, Id. State v. process. 477, 94 980-982. Idaho 858, (1971) (“Although 491 P.2d 860 the sheriff has some initial for an responsibility determining whether accused trial, during should be a jury handcuffed the trial Evans, v. himself.”); must decide the State question ... 1969) (Iowa 169 210 (judge’s N.W.2d deference to Brown, sheriff held improper); Commonwealth v. 364 471, 475, (1973) (the Mass. 305 N.E.2d judge “may significance attach report and recommendation of ... to that sheriff], responsibility but he not may pass [the Roberts, v. official”); A.2d 200 State N.J.Super. shackle, (1965) “they (judge preferred but [sheriffs] it,” it I conviction was asked for had to do and the Mendola, 270, 159 reversed); 2 N.Y.2d N.Y.S.2d People (1957) (“... the Sheriff 140 N.E.2d while ... determining of whether an responsibility has the initial trial, judge the trial during accused should be handcuffed Carter, v. himself”); State question must ... decide the for (1977) (“In 622, 628 errone App.2d 53 Ohio 372 N.E.2d the shackles concluding responsibility that the for ously court, and not the it is the apparent that of the sheriff issue,” thus any upon did not exercise discretion the court Sparkman reversed); to the requiring judgment be (1965) (“It is for 27 Wis.2d N.W.2d whether police rather than the determine the trial court or escape”). violence necessary prevent caution is such responsibility, not their courts abdicating In addition to alia, cases, inter in required that trial judges have also similar employing the reasons for shackles or articulate Carolina, of North Supreme measures. Court security 349, 368-369, 226 S.E.2d 353 Tolley, State v. 290 N.C. as follows: (1976), principle forth this set however, decision, his the the for “Whatever basis in jury rule that the trial judge, is when unquestioned of unusual cases, necessity employing the contemplates shackles, he should measures such as security visible the record, presence jury, out of the state for the give and counsel an opportuni- reasons therefor particular the court such persuade that objections to voice ty unnecessary. While the cases have estab- are measures rule as to the exact form evidentia- no definitive lished of the defend- shackling determine whether hearing to ry most conclusion is that the prevalent necessary, ant is rules of ordinary and that informal hearing may be observed, although judge the trial need be evidence physical decide, where need may particularly controverted, evidentiary to conduct full is restraint hearing with sworn testimony formal findings In event, fact. any a record must be made which reflects the reasons for the action taken by the court and which indicates that counsel have been afforded opportunity an to controvert these reasons and thrash any resulting out questions. factual Only can this manner there preserved a meaningful record from a reviewing which may court determine whether the trial court its abused discretion.”

The trial judge the instant case articulated no reasons which would justify making the defendant Bowers leg wear irons during the entire trial. discussed, As previously judge simply deferred concerns of the sheriffs off ice.2 There was no utterly reference to conduct Bowers subsequent prior trial which might have justified the shackling.

In addition to that the did holding not abuse discretion, the majority yet another reason for “see[s] an affirmance this on issue and prejudice that has not been shown.” The on v. majority goes to cite Veney State, 182, 190-197, 251 Md. A.2d cert. (1968), 246 568 denied, 948, 394 1284, U.S. 89 22 (1969), S.Ct. L.Ed.2d 482 Seidman v. and 305, 323-325, 230 Md. 187 109 A.2d denied, cert. (1962), 807, 1696, 374 U.S. 83 S.Ct. 10 L.Ed.2d (1963), 1031 where voir dire was “adequate found to screen course, out prejudice.” Of as opinion the majority goes on meRtioR, pretrial these dealt publicity eases with a shackling throughout jury not a defendant trial. with a a pretrial publicity, shackling Unlike defendant before practice is an that ... should jury “inherently prejudicial difficulty trial did that aware of “some 2. The mention he was awaiting he was Bowers was incarcerated “while that occurred when” however, This, previously. given the was not as a trial for offense” judgment shackling; judge’s the warranted in- reason which in trial stead, being for concern” of the it was mentioned as “some basis the before, Moreover, pointed oc- this conduct sheriffs office. out trial, prior shackling not first at that curred to the necessary. deemed 170 essential interest

permitted only justified by where an state to each trial.” 106 S.Ct. specific Flynn, supra, Holbrook v. is at 1346. That it is se when a defendant prejudicial per in numerous pointed tried chains is out jury, before See, cited majority. e.g., cases the v. Card Kennedy well, (6th Cir.1973), denied, 487 107 cert. 416 U.S. F.2d (1974) cases); (citing 94 40 L.Ed.2d 310 S.Ct. P.2d Duran, Cal.Rptr. People v. 16 Cal.3d 366-367, (1976); Tolley, v. N.C. at supra, State Because of the the prejudice, prosecution S.E.2d 353. necessity for showing physical bears the burden of the 107; Cardwell, supra, restraints. 487 F.2d Kennedy 384, 389, 472, 477 Coursolle, 255 Minn. 97 N.W.2d State v. of (Minn.1959) prisoner that conduct the (requiring shackles). necessity” for use evince “immediate affirmance, not set forth as a basis for explicitly While for rule general that the reason majority suggests it is with against shackling a is that inconsistent defendant innocence, in a sentenc- capital and that presumption no therе is innocence be- ing proceeding presumption has convicted of murder. already cause the defendant been of inno- Nevertheless, inconsistency the presumption with against shackling reason the rule only cence is defendant. against out in attorney pointed arguing

As Bowers’s ankles, leg him irons around his whenever trying with approach need to the bench or the Bowers would allocution, leg his movement during impeding cuffs highly Counsel stated: “We feel it would be obvious. animal, he is an gives appearance It prejudicial. It is well are somewhat concerned about that.” and we leg such as handcuffs or physical restraints recognized to ability the of a defendant communicate may impair irons counsel, the may and otherwise distract judge, jury with the defendant, defendant the may prejudice eyes and a jury.

Some of the reasons not for trying defendant in shack- les were forcefully set forth by Supreme the Court in Allen, Illinois 337, 1057, v. 397 U.S. 90 S.Ct. 25 L.Ed.2d 353 (1970). The (397 there Court stated U.S. at 90 S.Ct. 1061):

“But even to contemplate such a technique, much less see it, arouses a feeling person that no should be tried while shackled and gagged except as a last resort. Not only is it possible sight that the of shackles gags and might have a significant effect on the jury’s feelings about the de- fendant, but the use of this technique is itself something of an affront to the very and dignity judicial decorum of proceedings that the judge is seeking uphold. More- over, one of the defendant’s primary advantages of being present trial, at the ability communicate with his counsel, is greatly reduced when the defendant is in a condition physical total restraint.” These reasons fully applicable are capital sentencing proceeding before а jury.

During sentencing phase of a death case penalty jury performs the task difficult of weighing aggravating mitigating factors, including whether or not the defend poses ant a continuing threat to society. Art. 413(g)(7). Although the defendant is no longer presumed innocent of the murder for which convicted, he has been see Elledge (Fla.1981), So.2d 1022-1023 cert. denied, 459 U.S. 103 S.Ct. 74 L.Ed.2d 293 (1982), unproven he is presumed any innocent of extraneous suggest.3 which shackles propensities may The by capital sentencing issue be decided at a is as determined proceeding important issue at a regular criminal trial. It whether defendant is Elledge majority capital sentencing case is cited as a 3. proceeding upheld trying the where the court defendant shackles. however, Elledge, In the defendant had threatened to attack the trial bailiff, judge’s Supreme and the Court of Florida relied on this circumstance, Elledge support 408 So.2d at 1023. Thus furnishes no majority’s case. decision in instant 172 to have ordinarily An accused entitled put

to be to death. the prejudicial without make this determination leg disadvantages and limitations” effect and “inherent out, re has such Supreme pointed Court irons. As used as a resort” only should “last devices be straining each specific state interest an essential “justified by ‍‌​​​‌​​​​​​​​​​​‌​‌​​‌‌​​​​​‌​‌‌‌‌​​​​‌‌‌​‌‌​​‌‌‍standards, use of shackles of these light trial.” In justified. cannot present case case sentence and remand the I death would vacate sentencing proceeding. for a new McAULIFFE, JJ., me to state have authorized COLE and herein. expressed concur with the views they A.2d Booth Marvin

John BOOTH a/k/a v. Maryland.

STATE Term, Sept. 1984. No. Appeals Maryland.

Court of

7,May 1986. Allen,

4. v. Illinois 1061. 90 S.Ct. at 397 U.S.

5. Ibid. Flynn,

6. Holbrook at 1346. 106 S.Ct. notes do Ohio, We not believe that Lockett v. U.S. S.Ct. (1978), 57 L.Ed.2d 973 quoted North court, Carolina requires sought decision by Bowers. Johnson was decided the following year after Lockett. We have found no other decision reaching a similar conclusion. Code (1957, Repl.Vol.) Art. 413 is concerned sentencing with if a procedure person is found guilty

Case Details

Case Name: Bowers v. State

Court Name: Court of Appeals of Maryland

Date Published: May 7, 1986

Citation: 507 A.2d 1072

Docket Number: 122, September Term, 1984

Court Abbreviation: Md.