*1
STATE of 154, Sept. No. Term 1983. 1, Sept.
No. Term 1984. of Appeals Maryland. Court
April 23, 1985. *6 Gary Christopher, W. Defender, Asst. Public Baltimore (Alan Murrell, Defender, H. Burns, Public George E. Jr. and Sherrie R. Asst. Berger, Public Defenders and William C. Brennan, Jr., Sothoron, Jr., Baltimore, and Richard H. counsel, brief), on for appellant. Rosenblatt, Gen., (Ste-
Richard B. Atty. Asst. Baltimore Sachs, phen Atty. Gen., Baltimore, H. brief), appellee. Argued MURPHY, C.J., SMITH, ELDRIDGE, before COLE, COUCH, JJ., RODOWSKY and E. CHARLES ORTH, Jr., Judge (re- Associate of the Court of Appeals tired), Assigned. Specially ORTH, Judge.
Opinion by
THE CRIMES Carlton Xavier midnight on June Shortly before on the Huong and Minh Phamdo were ambushed Fletcher n Greenbelt, Mary- Minimart in lot of the Goddard parking wilful, land, premeditated deliberate and murdered George’s of the Prince killing. Fletcher was member working on his own time Department, Police County the assistant Minimart. Phamdo was guard for security carrying He had left the store just of Minimart. manager $24,000 he bags containing money store’s which some depository. Fletcher place night was to a bank’s *7 waiting to escort Phamdo police seated in a marked cruiser indicated that Pham- Subsequent investigation to the bank. as gave pay do to car and Fletcher his a police walked the car, parked his As Phamdo walked toward security guard. cruiser, a emerged nearby next a man from wooded Phamdo; slug twenty from a fatally area and shot in the chest. The assailant gauge shotgun struck victim fled. the same time that Virtually and money seized the rear of shot, another man blew out a window Phamdo was shotgun, a gauge from police cruiser with blast twelve struck fired a second shot which immediately and thereafter neck, him. killing of his Fletcher’s Fletcher the left side fled, then also foot. assailant
THE TRIAL Stage The Guilt George’s Jury for Prince July On 14 Grand Ali charging indictment Kamel jointly returned an County the murder Elfadl Kenneth James Lodowski with and (count 1) (count 2), and of Phamdo first of Fletcher degree 7) six (count of Phamdo and with robbery armed with the 3, 4, (counts to crimes relating of those conspiracy offenses 9). 5, 6, 8 and Prince of the Circuit Court for
Following order separately, the defendants tried County George’s first, court counts, transmitted second and seventh charging Lodowski the murders the robbery, the Circuit Court Charles trial.1 County for for Lodowski as a by principal was convicted in the first jury degree degree the murder the first of Fletcher under the first count, as a in the principal degree second the murder in degree count, the first Phamdo under the second and of the armed under the seventh robbery Whereupon count. the Circuit George’s County Court for Prince ordered that 3, 4, 5, 6, against counts Lodowski be transmitted to the Circuit Court for Charles County for trial. Lodowski pleaded not those guilty counts and elected to be tried the court. presented by The evidence was a stipulated set of facts. The court found guilty Lodowski conspiracies as each charged of the six counts.
The Punishment Stage
The State had served a timely notice on Lodowski that it
intended to seek
a sentence
death and had advised him of
each aggravating circumstance
it
upon which
intended to
rely. Upon
count,
Lodowski’s conviction
under
first
separate
determine
sentencing proceeding was conducted to
whether he was to
imprisonment
be sentenced to death or to
life,
all as
required
pursuant Maryland
Code
§
(1957,
Repl.Vol.,
1983 Cum.Supp.), Art.
413 and
*8
(now
Maryland
4-343).
Rule 772A
Rule
Inasmuch as Lo-
dowski waived a jury sentencing proceeding, the proceeding
was conducted before the Circuit Court for Charles County
alone. Evidence
received
arguments
was
and
heard. The
preponderance
court determined by a
of the evidence that
mitigating
the
circumstances did not outweigh
aggra-
the
George’s
The Circuit
County
1.
Court for Prince
ordered that the case
against Elfadl be
to
County
transmitted
the Circuit
for Calvert
Court
jury
for trial. Elfadl was convicted
of
of each
the nine counts
against
imprisonment
him. He was
to
sentenced
six terms of
for life
imprisonment
and to three
twenty years,
terms of
for
to run consecu-
tively.
judgments
upon appeal
The
were reversed
to the Court of
State,
132,
Special Appeals.
(1985).
Md.App.
THE PRETRIAL MOTIONS the Indictment Validity motion dismiss each pretrial Lodowski filed on the that it “was ground of the indictment every count committing remaining disposed of the convictions 2. The court Department life under each of of Correction for Lodowski 2nd, 5th, years of the 7th and 6th under each counts 3rd, counts, consecutively. It held that the 8th the sentences run 4th, merged. counts and 9th *9 illegal a Grand which was and invalid since it by Jury issued selected a method not reasonably designed pro- a cross section jury representation duce of the commu- Lodowski claims that the trial court erred in nity.” denying correct, motion. If were Lodowski case now before us would be at an end because there would be no charging outstanding document he on which could be tried. Md.Rule (now 4-201). Rule Legislature The has declared it is policy of this person State that “when a accused of a criminal offense is presented grand jury,” right he has the to a jury from a fair “selected random cross section of the citizens reside in county State who where the court § (1974, convenes.” Maryland Repl.Vol.) Code 8- 102(a) of the Proceedings Courts Judicial Article. This (b): is policy explicated by subsection Every citizen of this State who maintains his name on the roll of voters registered for State elections has:
(1) The opportunity
grand
to serve on
and petit juries;
(2)
obligation
to serve when summoned as a juror.
§
This
policy
implemented
8-104,
provides
which
jury commissioner or the clerk of the court shall
[t]he
select the
prospective
names of
from
jurors
among those
persons 18
old or
years
older whose names
on the
appear
lists,
registration
voter
and from such additional sources
§
permitted by
plan adopted
under
8-201. Volunteers
for jury
refused,
recommendations,
service shall be
if
made, may
accepted.
not be
State,
Wilkins v.
(1973),
270 Md.
cert.
U.S.
S.Ct.
702 Constitution, of com- requirements nor the
[n]either
for
sense,
perfect
system
scientifically
demand a
mon
communi-
cross section of the
representative
producing
devised____ All that is
system
such a
been
Nor has
ty.
designed
produce
reasonably
method
is a
required
community.
of the
of a cross section
jury representative
registra-
at random from
selection of names
objective
Md.Code,
Article 51
by
for
provided
tion lists as
[of
Article,
“fully
Title
satisfies
Proceedings
now Judicial
8]
impartial jury
itself to an
and commends
requirement
this
v.
United States
69,
39,
Id.
quoting
at
310 A.2d
system.”
382,
(S.D.N.Y.1961).
391
Greenberg,
F.Supp.
103-07,
(1984), is
State, 299 Md.
88,
We hold
stands as a
The indictment
not erroneous.
indictment was
Lodowski.
try
on
document
which
charging
proper
the Case
Trial
The Removal
into
taking
...
Maryland
People
State
“[T]he
establishing
means of
consideration the best
serious
[their]
the sure foundation
in this State for
Constitution
good
made certain decla-
thereof”
permanent security
more
Rights.”
as the “Declaration
are known
rations which
20,
as Article
declarations,
designated
now
of these
One
arise,
is one of the
facts,
they
the trial of
where
“[t]hat
lives,
estate of the
securities of the
liberties
greatest
holding in
suggests
Wilkins
that we reexamine
Lodowski
3.
denied,
(1973),
State,
415 U.S.
cert.
270 Md.
(b) presentments all cases of or indictments for death, offenses that are in punishable by suggestion writing under oath of either of the parties proceed- ings party cannot have a fair and trial impartial the proceedings pending, the court which may court proceedings shall order and direct the record of the presentment or indictment to be transmitted to some other court having jurisdiction such case for trial.
(c) In presentment indictment, all other cases of ... in to suggestion writing addition in of either of the parties to cause or case that the cannot party have a fair in impartial trial the court in which the cause or case be it shall may pending, for the necessary party making the to suggestion make it to satisfactorily appear true, court that the suggestion is or that there is same; ground reasonable for the and thereupon the court shall order and direct the record of the in proceedings cause or case to court, be transmitted to some other trial____ having case, in the jurisdiction cause or for The court to which the record of in proceedings such ... presentment transmitted, or indictment is shall hear and determine that cause or case in the same if manner as it Court____ had been instituted in originally that These provisions constitutional implemented are by Mary- (now land 4-254(b)). Rule 744 Rule The against action Lodowski was removed for trial from the Circuit Court for Prince in- George’s County at the stance State’s for Attorney George’s Prince County. suggested He under writing oath that the could not State impartial have a fair and trial the court in which the case He pending. was that the court prayed order that counts one, seven, two and charging Lodowski with the mur- two and the armed robbery, ders be transmitted to another having jurisdiction. court Lodowski made known to the court his belief that he could obtain a fair and impartial trial and his George’s County for Prince
in the Circuit Court that Attorney’s suggestion the State’s disagreement objected any not. He removal. Ultimate- the State could and, have prayer, the State’s we ly, granted the court one, Lo- seen, against counts two and ordered that seven Court for Charles dowski be transmitted the Circuit that urges improper. Lodowski this was County trial. removal, requested hearing Lodowski opposing Although the State’s insisted Attorney on the matter. removal, did not right of he the State had an absolute hearing. The conducted a judge plenary oppose hearing. “for three requested approximately Defense leave counsel in the matter.” prepare legal pleadings days which to court, however, for removal granted request the State’s court, “I want open He announced without further ado. so in this to make clear in this case.” He did my position language: in this right of removal
I think the has absolute State case, present I understand it at the on the law as based time, hearing reason only we went [the thought said that he Attorney] State’s defense] [the you hearing. give And I don't intend to entitled to a signing file I am any legal pleadings. time to anymore *12 of right I the has absolute an order. think State removal. counsel, judge the ob argument by
After further defense to memoran right that counsel had a file a defense served he, to the law.” judge, as “sworn follow dum but that was I have to my “In the law is that explained: judgment He now, removed right just and I sign order for [the removal] 4 case.” the guilty by jury in Court for found the Circuit After Lodowski was 4. first, counts, appears County the and seventh it under second Charles remaining objection to of the counts made no the removal that he three, four, respect to supra, As set out counts in that court. trial five, six, nine, pleaded guilty, to be tried eight he not and elected and presented by stipulated set of facts. by on evidence the court guilty six under each of the counts. found him court the Constitution Rights vs. The Declaration of claim error in the removal of At the hub Lodowski’s Article of the Declaration of counts is that the three § IV, the Constitution are Maryland Article 8 of Rights and urges He that in and must harmonized. conflict be solution, “gives and resolution which correct [t]he permit removal to” both would be provisions, effect on it is cases the same basis that capital the State should be prosecution cases—the permitted non-capital that it party to a neutral third to demonstrate obligated original fair jurisdic- cannot obtain a trial in genuinely tion. case,” made this showing such
He asserts “[n]o not have been “Accordingly, the case should and concludes: trial.” removed, and is entitled a new [he] contention was resolved The answer to Lodowski’s twenty-five ago. and This Court years some one hundred State, (1860): said Baltimore v. Md. Rights Declaration of are to bear in mind
[W]e literal itself, according its not to be construed compose it our form meaning; Constitution as interpreted must one instru- they be government, ment____ principles The former announces which established, If to be will be based. government, about differ, limitation must taken the Constitution they de- general previously qualification principle em- clared, subject language to the according ployed. Baker, (1865), put way: 23 Md. it this
Anderson conflict Constitution supposed As to between called, Rights, Bill of as it is such a and the Maryland occur, according accepted can scarcely collision these instruments. of the relation between theory are un- governments, they constitutional representative *13 constituting entirety, whole, to of a parts be derstood The as one instrument. Declaration to be interpreted (or principles, of abstract Rights an enumeration of so,) and the Constitution the designed practical be principles, exigencies of those modified application country. of the time or circumstances of the It then reiterates what was said Baltimore v. State differ, must taken as a 459: “If the Constitution be they declared, previously according limitation of the principle v. Anderson subject language employed.” and the Baker concludes: Rights guide
The Declaration of is a to the several government, questions of of doubt as to departments Constitution, guard against of the and “a meaning of does extravagant power,” or undue extension but any itself, it is clear and not control the Constitution when Id. at 628. unambiguous. and the Rights
The relation between the Declaration of
and Anderson
Baltimore v. State
out in
Constitution as set
Thurston,
expressly recognized Boyer
v. Baker 279, 295,
(1967). The
of the
247 Md.
Federal Constitution Lodowski, holding specifics our that the According of the Declara- prevail generalities over the Constitution error dispose does not of his claim of Rights finally tion in the removal of his case. He looks to the constitutional provision urges removal would Maryland construction Constitution which right unfettered to remove virtually the State
permit defendant, offering substan- capital case of a while to a protection against unwanted removal tially greater defendant, equal protec- would contravene non-capital of the Fourteenth Amendment guarantee tion Federal Constitution. *14 concerning make an observation Lodowski’s
We first
having
virtually
to the State
“a
respect
with
statement
capital
the case of a
defend-
right to remove
unfettered
ant____”
and the defendant are
note that
the State
We
in
right
the same
of removal
granted precisely
absolute
a fair and
trial is not a
right
impartial
case. The
capital
travel;
the
may
street on which
a defendant
one-way
only
the
as well as to the defendant. This
right accrues to
State
of
penalty
the
seeks the extreme
is so even when
State
defendant,
State,
the
is entitled to
equally
death. The
with
trial for the determination whether the
impartial
a fair and
crime
death was committed
punishable by
delicti of a
corpus
if
agent,
the criminal
so
the accused was
and whether
as the
seeks.
the defendant shall be executed
State
whether
the
equal protection
is no affront to
when
State
There
the
to assure a
the same
defendant
opportunity
afforded
trial in such instance.
impartial
fair and
guarantee
equal
turn to
notion that his
We
Lodowski’s
of removal is
right
is contravened because the
protection
noncapital
it is in
cases.
capital
different
in
cases than
of Rights
Article 20 of the
Declaration
Maryland
of an accused to be tried where the
recognizes
right
arise,
general
this
has followed as a
rule
facts
State
in
and trial must be had
charges
proffered
that
must be
Although
the crime
committed.
there
county where
was
to certain
statutory exceptions
respect
has been
530-534,
crimes,
State,
524,
209 Md.
122 A.2d
see Kisner v.
(1956),
not indict and a
ordinarily
Jury may
a Grand
in a
may
try
jurisdiction
not
an accused
Attorney
State’s
in
But the
place.
outside the
which the offense took
county
is not an
one. It is
as we have seen
right
subject,
absolute
provisions
body
contained
removal
by way
This Court’s statement
Maryland Constitution.
102,
repeated
dictum in
122 A.2d
which was
Kisner
(1975),
State,
258, 272,
A.2d 290
275 Md.
Stewart v.
for trial in
necessity
“the
that the common law
concept
is not a
of the commission of
crime
county
funda-
right
added),
or requirement” (emphasis
mental
made
with the observation
Constitution of 1776 did not
“[t]he
succeeding
require
Maryland Constitutions have not
required that
the trial of an accused
place
take
the crime
county where
was committed.”
this
Clearly
removal,
made in
light
right
statement was
which, as we said more than three decades
ago Heslop v.
State,
(1953),
202 Md.
There is no
in the
provision
federal constitution
requires
which
that a state trial of an accused take
place
county
the
where the crime
committed. The
was
Sixth
Amendment to the Constitution of the
pro
United States
vides,
alia,
inter
that
all criminal prosecutions,
the
“[i]n
right
trial,
accused shall
the
to a
enjoy
speedy
public
by
and
an
impartial jury
State and district wherein the crime
committed,
shall have been
which district shall have been
law____”
added.)
previously
(Emphasis
ascertained by
The
of
Bill Rights
draftsmen
omitted the
specifically
vicinage requirement
common law
as too
The
restrictive.
provision as
adopted represented
compromise
pro-
which
tected an individual from
tried
an
being
body,
alien
but
require
did not
a trial in the county where the crime was
Florida,
78, 93-96,
committed.
399 U.S.
Williams
1893, 1902-1904,
(1970).
S.Ct.
[Tjhere language no basis in the of constitutional removal, provision relating inferring to for any purpose other than an providing additional procedural safeguard in a case where might a criminal defendant put fact be § 8, IV, to death. Art. merely provides that a criminal defendant has right an absolute of if charged removal offense “punishable Johnson, death.” by 271 193, atMd. 315 524. A.2d
He determined that of the history provision, therefore, removal shows a
[t]he shifting concern having right between a broad removal and having right limited very because of the abuse associated with requests present removal. The consti- tutional language resulted from a desire to narrow the right because of the abuses shown. No other intent is by 194, revealed the historical material. at 315 Id. A.2d 524.
710 rational for the distinction it is that a sufficient basis Thus death and punishable by to crimes removal as between proved other crimes is that the distinction has as to removal hold justice.” to the administration of We to “essential § IV, Maryland of Art. 8 of the provisions that the removal Rule 744 do not offend the by as implemented Constitution the Fourteenth Amendment equal guarantee protection to the federal constitution. the Statements Suppress
The Motion to
Lodowski
by
Made
in the
pretrial
filed a
motion
Circuit
Lodowski
all state
George’s County
suppress
Prince
to
Court for
plenary
The court held a
police.
made
him to the
by
ments
conducting
hearing,
on the motion.
hearing
the law
procedures
applied
with the
complied
court
1105,
A.2d
Kidd, 281 Md.
set out
us in State v.
by
L.Ed.2d 498
denied,
98 S.Ct.
434 U.S.
cert.
hearing,
the court found
(1977). At the conclusion
that the statements were
of the evidence
preponderance
ruling,
to this
the motion. Pursuant
and denied
voluntary
County,
for Charles
the trial in the Circuit Court
challenged
the motion
the statements
permitted
court
duty
then
the jury’s
It
became
jury.
be submitted
doubt,
determine,
the state
a reasonable
whether
beyond
the court
contends that
voluntary. Lodowski
ments were
context,
may
or an admission.
a statement
be a confession
5.
In this
318, 323,
(1963)
State,
Md.
193 A.2d
in Stewart v.
As defined
admission,
say,
species
an admission
that is to
confession is
[a]
says
necessarily implies that the matter confessed constitutes
acknowledg-
is an
which is not a confession
a crime. An admission
which,
itself,
is insufficient
of some fact or circumstance
ment
the ultimate fact
a conviction but which tends to establish
authorize
guilt.
*17
distinction,
firmly
the test for the
Despite
"it is
established that
this
against
accused is the same for a confession
receipt in evidence
1105,
32,
1,
Kidd,
n.
375 A.2d
State v.
281 Md.
34
an admission.”
1002,
646,
(1977).
denied,
See
S.Ct.
When we deal with
whether
was
is our
to examine the
voluntary
involuntary,
duty
it
independent
entire record and make an
determination of the
ultimate matter of voluntariness vel non. Davis v. North
Carolina,
737, 741-42,
1761, 1764-65,
384 U.S.
86 S.Ct.
(1966);
State,
73, 84,
L.Ed.2d 895
v.
282 Md.
Watson
denied,
3100,
A.2d
cert.
437 U.S.
98 S.Ct.
(1978).
L.Ed.2d 1140
Almost
in cases
invariably
involving
through
police interroga
statements obtained
unobserved
tion,
there are conflicts
the evidence as to the events
surrounding
interrogations.
the
But this Court is not a
facts;
finder of
preliminary
the
determination of volun
tariness the weight initially
given
to be
the evidence and the
of the
credibility
witnesses are matters for the trial court.
The independent Constitutional appraisal which we are ob
means, therefore,
liged to make
accept
findings
we
hearing
to the facts
judge
respect
surrounding
interrogation
unless his judgment
clearly
thereon is
ourselves, however,
erroneous. Rule 886. We resolve for
record,
fact,
of the entire
light
namely,
ultimate
the existence or nonexistence of voluntariness.
v.
Walker
State,
684, 691-95,
(1971);
12 Md.App.
In denying suppress, hearing judge, the motion to bench, from the deemed speaking question or not denied his constitutional “whether [Lodowski] counsel, under the right according everything that is Amendment He Sixth Constitution.” made [the federal] *18 the answering question—that of fact only finding one “I Commenting that lawyer. a request Lodowski did not fact, right me the gives trier of which am here as a sitting that I any person of testimony to or disbelieve believe disbelieve,” he declared: to choose believe that I want testimony any people, I from any don’t have believe, that he asked for believe, I choose to ever to night question. attorney applicable he thought what was unequivocally He stated law: State, is that the I it to be this
The law as understand making defendant is to right personal [the [to counsel] the statement]. Characterizing his thereafter, he iterated belief.
Shortly serious,” he said: “very question right is is to be that understanding of law [M]y to exercise and he didn’t choose to personal [Lodowski] it____ change the law. he did not intend
He asserted that he had it to to the fact thought as he Applying the law of the evidence found, by preponderance he “believed and given ... voluntarily freely these statements are de- all statements suppress the motion to accordingly nied.” subject made Lodowski were
Three statements a written The first statement was suppress. the motion The on 14 1983. second p.m. at 11:00 June given admission as a result of an an oral confession obtained statement was on 17 June 1983 p.m. about 10:15 began which interrogation morning. the next after 6:00 a.m. shortly ended was ob- admission which a written statement was third confession was concluded. after the oral immediately tained our make on the third statement. We focus at this time We the fol- light in the appraisal constitutional independent circumstances. lowing facts and that Lo hearing judge finding The factual erroneous. clearly not lawyer not request did dowski Therefore, we it. accept And assume for the purpose we that, making statement, decision prior the third Miranda given Lodowski was with warnings respect waived, nonce, his to a right for the lawyer the right writing by answering “yes” to the question, you “Are willing having to answer questions without lawyer *19 you now?” We find the before us record certain other regarding relevant facts the circumstances surrounding the the making of statement stand undisputed third which and unrefuted. police
Lodowski was in at the custody station from 10:00 p.m. police on 17 June when the informed him he that arrest, was under noon day until the next when was he taken a the before Commissioner of District Court. During that period interrogation produced of him two statements. One anwas oral confession. As recounted the officer to made, whom crimes, it was it inception covered the the them, execution, the planning of their disposition the the loot the of the murder disposal weapons. the Upon confession, completion of the oral Lodowski was presented with a form on typed following: which was the you
Kenneth have advised me officer who received [the the oral you have information the about statement] shooting/armed robbery that occurred at Mini-Market on Greenbelt Rd. I evening. last would like for Saturday you to tell me about that incident.
The balance of that page pages and two additional bear statement handwriting. Lodowski’s A fourth page appended which according police, diagram to the is a show- ing where the murder were thrown weapons from question 6. The Rights was included in a "Waiver of and Statements" police form the time of execution to was stated be 17 June which sign 1983 at “2219 hrs.” Lodowski’s was version that he did not June, p.m. subsequent making form until after 12:30 on 18 seen, oral both the supra, written As have statement. we matter, hearing finding apparently court made no factual on the thinking necessary it light that was not do so in the reason he ruling suppress. advanced for his on the motion into the Potomac River. state Bridge Woodrow Wilson time Hrs.”7 the date “6-18-83” and the “0618 ment bears around A of the statement possession officer took police he requested on 18 June at which time 11:00 a.m. of the first three Lodowski did sign pages. each Lodowski so, under “signed protest.” the notation adding mother, June, who was on 18 Lodowski's 6:15 a.m.
About station, that her police informed police at the immediately steps took to obtain son She suspect. was a employed 7:15 a.m. she had By of a lawyer. services arrived at lawyers her son. The lawyers represent two themselves, a.m., identified station 8:10 police request was with their client. The asked to and consult see noon, taken Lodowski was From then until when refused. Commissioner, persistent made they Court District before They their client. to obtain access to efforts without avail Defender, the Attor- of the Public State’s solicited the aid George’s County judge. and District Court ney for Prince *20 corpus a of habeas petition a for writ They prepared it to hear at noon. judge the agreement obtained to perfectly clear position made their police Their Attorney judge. and to the State’s lawyers, to his to right had that since Lodowski waived position was not they for a were lawyer, had not asked counsel and him. him to talk to representing lawyers to allow the going him at told 9:45 Attorney recounted what was The State’s police to the about Lodowski. inquiry he made a.m. when that Lodow- Attorney State’s Miller informed the Lt. Robert time, advised he had been being at that processed ski “was Depart- Police County rights by George’s the Prince of his attorney, they and that ment, requested not an that he had to counsel to talk inappropriate it was thought police] [the one of the to Mr. Lodowski.” When counsel see or to allow designated state- as the "third which we have is the statement 7. This writing given by to Lodowski had been A "first statement” ment.” that Lodowski statement confirmed police 14 June That 1983. implicate It either apartment Elfadl. did not had shared of the crimes. commission or Elfadl Lodowski lawyers telephoned Attorney the State’s about 9:55 a.m. and client, asked see Attorney to his the State’s said that he “thought thing go best be to ahead with his would for the hearing petition corpus], writ of habeas [on we have an at attorney would available whatever time the Court wished to have an attorney available.”
While the to lawyers attempting were without success see client, their writing was the third He Lodowski statement. aware, was by police, not informed nor he he was before completed it, had the statement and signed that two law- yers retained his mother represent to him at the were police desperately station to him attempting see so they could him consult with forthwith. cause,
In a criminal
when the State seeks to
introduce into
given
evidence statement
by defendant
law enforcement officers
during
custodial interrogation,8
must,
it
upon proper challenge,
aby
preponder
establish
ance of the evidence that
the statement was voluntary.
Kidd,
State
281 Md.
enjoy ...
have
Counsel
added.) Therefore,
right
appli-
(Emphasis
defence.”
adversary judicial
the initiation of
criminal
only upon
cable
at
time the statement was obtained
proceedings, and
from
such
had not
initiated
proceedings
Lodowski
been
charge,
hearing,
way
preliminary
him
of
against
by
formal
State,
v.
indictment,
Webster
arraignment.
or
information
See
581,
(1984).
606,
The
that a statement obtained from
requirement
during
officers
a custodial
by
defendant
law enforcement
in the traditional sense
voluntary
must be
interrogation
prosecution generally
in a criminal
order to be admissible
of
Fifth Amendment to the
portion
stems from that
commanding
person
that no
“shall be
federal constitution
against
criminal case to
a witness
compelled
any
States,
532,
v.
542, 18
himself.” Bram United
168 U.S.
1,
(1897); Malloy Hogan,
v.
183,
U.S.
S.Ct.
L.Ed.
v.
see Escobedo
(1964). But
One
right
has a
person
is that
questioning
any
Mi-
appointed.
either retained
attorney,
presence
*22
717
randa,
444,
479,
1612,
U.S.
384
at
86
at
1630.
S.Ct.
“[T]he
right
present
interrogation
to have counsel
at
is indis-
pensable
protection
to
of the Fifth
privilege
Amendment
compelled
[against
under the system we
self-incrimination]
Id. at
469,
today.”
delineate
The
of counsel
adequate pro-
... would be the
necessary
tective device
to make
process
of police
interrogation conform to the
the privilege.
dictates of
His presence would insure that statements made in the
government-established
are not the
atmosphere
product
Id.
466,
at
compulsion.
he
wishes
consult with an attorney
speaking
before
there
questioning____
can be no
The mere fact
he
may
questions
have answered some
or volunteered some
statements on his own does
deprive
right
not
him the
from answering
inquiries
refrain
further
any
he
until
has consulted with an
attorney
thereafter
consents
Id.
questioned.
444-45,
at
The right presence counsel, like the other Miranda rights, defendant, bemay waived “provid ed the is waiver made voluntarily, knowingly and intelli Id. at
gently.”
444,
L.Ed. 1461
The Court expressly reasserted these
applied
standards
to in-custody interrogation and ob-
served
burden is on the shoulders of the State.
Miranda
U.S.
“[W]here
that the
if the
privilege
room for the contention
waived
*23
or
some informa-
questions
gives
some
individual answers
475-76,
at
at
tion on his
Id.
86 S.Ct.
1628-29.
own....”
clear that
individual need not
makes
Miranda
“[a]n
request
lawyer____
make
a
pre-interrogation
a
[H]is
not constitute a waiver.”
lawyer
ask for a
does
failure to
it
470,
384
at
The Court noted that
at
86 S.Ct.
1626.
U.S.
Cochran,
506, 513, 82
had
369 U.S.
stated
Carnley
is
884,
(1962),
70
settled that
888,
S.Ct.
8 L.Ed.2d
“[I]t
requisite,
of counsel is a constitutional
where the assistance
not
depend
counsel does
be furnished
right
471,
The
Moreover, evidence that the accused was any will, course, show that tricked, of into waiver cajoled privilege. his Id. voluntarily the defendant did not waive at 86 at 1629. S.Ct. “Opportu- holdings, its the Court warned: summarizing must afforded to rights these
nity to exercise [the interrogation.” Id. throughout defendant] at 1630. S.Ct. of scanning opinion from readily apparent
It is our voluntariness, the matter of the the Court Miranda made by of the third statement admissibility, thus the Lo- opinion. is the dictates of that governed by Lodowski privilege the Fifth Amendment right had the under dowski assistance of counsel at self-incrimination against Thus, an- to be question statement. making not suppress of the motion to was for a resolution swered proper question it. posed hearing judge Miranda, effec- Lodowski whether, contemplation in the tively right his respect waived to counsel with to the third statement.
When we consider the facts un and circumstances der which the third statement in the light was obtained Miranda and the reasons advanced holdings therefor, we are led inescapedly conclusion that the third statement not voluntary. It was not voluntary because the waiver made by Lodowski was with respect ineffective to it. “Although the police punctiliously adhered to the formula of Miranda decision in advising [Lodow verbal rights, they adopted thereafter tactics which ski] [his] prevented effectively or forestalled the exercise of [his] rights.” McKenna, Commonwealth v. Mass.
N.E.2d 560,
(1969).
requirement
“The
of warnings and
rights
waiver of
not
is ...
simply
preliminary ritual to
*24
existing
of interrogation.”
Miranda
methods
384
U.S. at
476, 86
at
S.Ct.
1629. The defendant must be afforded the
to
opportunity
rights
exercise the
throughout
interroga
the
tion. Id. at
479,
(1979), S.Ct. cert. [64 (1980). L.Ed.2d 802] State, (Okl.Ct.Crim. Lewis made in
Like
was
observation
(1984). The court added:
App.1984)
We can counsel, recited to the usual offer indifferent abstract Miranda, will disdain warnings required by part him then and waiting see lawyer a chance to consult at 685. there. 457 A.2d Matthews, in State v. reasoning expressed
The same
(La.1982).
agree
And we
408 So.2d
the opportunity
in Haynes
observation
“[w]hen
no
frustrated,
there is
room
is in fact
consult counsel
not have chosen
might might
defendant
speculation what
To a recurrence of situation prevent to the accused case, given *25 protection effectuate the instant has Miranda, opportunity a the suspect and ensure that by as rights, adopt, his we and waive knowingly intelligently to guid for the and law enforcement authorities a to caution the court courts, by rule the established of the trial ance Weber: un- during interrogation, and to or custodial prior
[i]f or properly retained suspect, specifically to known station present police lawyer actually designated or assist- legal render advice seeking opportunity an to negli- police intentionally or suspect, ance 721 fact, fail suspect to inform the of that gently any then police statement obtained after the themselves know of to attorney’s suspect, efforts assist the any or evi- any statement, dence derived from such is not admissible any suspect on that the theory intelligently knowing- ly right waived his to remain his right silent and to counsel as established 457 by Miranda. A.2d at 686. applies The rule attorney whether the by was retained suspect or a third party acting of or behalf for the suspect public or was a defender or other lawyer designated appointed represent to suspect.
We have stated our
view
a suspect
fully
must be
of
presence
informed
the actual
availability
counsel
him,
who seeks
confer
order that
any waiver
right
counsel,
Miranda,
established by
can be know
ing and intelligent.
shared,
This view is
in addition to the
to,
cases
Smith,
179,
above referred
v.
People
93 Ill.2d
412, 416,
1325,
66 Ill.Dec.
(1982);
442 N.E.2d
1329
State v.
Jackson,
734,
(La.1974);
303 So.2d
737
v.
Commonwealth
Mahnke,
662,
660,
368 Mass.
(1975),
335 N.E.2d
691-92
cert.
denied, 425
959,
1740,
(1976);
U.S.
96 S.Ct.
The cases above which we have cited and extensively quoted represent a majority clear of the courts which have considered issue. Other cases have in effect shared our adopted view but have an stringent even more rule—once attorney enters the proceeding, police may ques- not tion the defendant the absence of counsel unless there is waiver, an affirmative presence the attorney, the defendant’s right to counsel. Johns, v. See State 185 590, 177 580, (1970); Neb. N.W.2d 585 Hobson, People v. 419, 420, 479, N.Y.S.2d 894, N.Y.2d 348 N.E.2d (1976); People Arthur, N.Y.S.2d 22 N.Y.2d 325, 239 (1968). N.E.2d We do not subscribe that rule. *26 not in comparable facts which are
The few cases under question validity of the disregarded the full accord have of the circumstances upon totality relied the the waiver and see, e.g., voluntary, a statement was determining whether v. (Iowa 1981); State State Blanford, 306 N.W.2d (1978). Smith, 294 N.C. 365, 241 680-81 S.E.2d majority of the courts in other reasoning The of the circumstances those the analogous states faced with us is and convinces that persuasive case before us right of his police conduct of the vitiated Lodowski’s waiver Therefore, respect to counsel with to his third statement. inadmissible rendered involuntary that statement was even police, case in chief. The conduct of the State’s law, of the had the concept if a mistaken predicated upon “No circumventing rights. system effect Lodowski’s if accused is preserving should have to fear that worth .an he become aware lawyer, to consult with a will permitted Matthews, exercise, at 1278. of, rights.” his So.2d statement, of the hold, as to the third that denial We requires error which suppress prejudicial motion at the under judgments jury entered trial reversal indictment. first, and seventh counts of the second at the judgments same entered court For the reason fourth, fifth, sixth, ninth third, eighth and trial on the seen, are reversed. As we have counts of the indictment The stipulated on set of facts. charges those were tried conspiracies to the included regard facts stipulated the trial presented statements of Lodowski “as one, two, Defendant Lodowski (although counts and seven of this preserve objections admissibility his wishes to Thus, the denial of the evidence).” our determination that erroneous re- the third statement was suppress motion counts also be quires judgments conspiracy set aside. if this Court holds suggests State “[e]ven specific when general terms is not effective
that waiver
available,
that the failure to advise
or determines
counsel
*27
of the
of a
availability
specific attorney renders
[Lodowski]
proof
insufficient,
the
of waiver
State’s
error in admit-
any
the
in
ting
clearly
statements
this case
harmless
was
be-
a
yond
reasonable doubt.” The third statement was an
confession,
admission as
from a
distinguished
see n. 5
but was
supra,
inculpatory
it
and
buttressed
oral con-
fession, lending
credence to the confession
a way that
was not
It
insignificant.
dealt with Lodowski’s relationship
crimes,
with Elfadl
to the
prior
commission
Elfadl’s
purchase
shotgun
of a
persistent
Elfadl’s
solicitation of
Although
Lodowski to rob the Minimart.
began
Lodowski
to
it
attorneys
write
before his
knocked at the stationhouse
door, it
he
appears
completed
that
had not
it when they
to
initially attempted
arrived and
consult
him. He
did
sign
not
it or turn it over to the police until several hours
after his
attorneys were first denied access to him.
such
circumstances,
the fact
third statement was in
is
respects
controlling.
some
“cumulative”
not
A question
present
is ever
credibility
offered,
when a statement
respect
so with
an
particularly
to
oral statement re-
police
counted
a
officer
an
and made during
unobserved
A
interrogation.
signed statement
a defendant’s hand-
writing is
compelling
more
evidence of
what
defendant
said than the
a
testimony
police
officer of what the
defendant said. A
signed
defendant who has written and
an
statement
to
inculpatory
has
far heavier
meet
burden
to establish that he
actually
was
not involved
the commis-
sion of
if
the crime than
his statement were oral. See
State,
132, 138,
Md.App.
(1985).
v.
We do reach There numerous con- admissible. were oral confession was to the circumstances respect flicts in the evidence with disputed it example, it obtained. For under which was at 10:19 signed on June 1983 the waiver was whether indicated, p.m. until 12:30 not after police as the p.m. maintained, so as to after both the 18 June as Lodowski given. the third statement were oral confession and his mother were differs as what Lodowski evidence police as to status time to time Lodowski’s told from attorney. need Due or a and his suspect as a witness interrogation employed and the tactics length *28 capa- Lodowski was disputed the it was whether by police, rights. psychia- A knowingly waiving of his freely ble witness, his trist, gave opinion, based expert offered as an Lodowski, confes- of the oral examination upon personal court, sion, “sleep he heard and Lodowski’s testimony the was made. He when the confession deprivation state” product was not the of Lodow- opined that the confession seen, As none of these choice. we have ski’s unconstrained hearing of findings factual the by matters were resolved findings necessary independent for our Such are judge. the of the confes- constitutional of voluntariness appraisal sion. of the first statement.- admissibility
Nor do decide the we it the upon whether was depends primarily Its voluntariness state- interrogation. “Volunteered of custodial product the Fifth Amendment any by ments of kind are not barred not our to- admissibility by holding is affected and their Miranda, 1630. The 86 S.Ct. at U.S. day.” first whether the finding made no factual hearing judge after an effec- was extracted statement was volunteered interrogation while Lodowski by tive waiver by the State on proffered If the first statement custody. findings court shall make factual challenged, retrial and the constitutional independent to our appropriate on record Jackson its respect voluntariness. appraisal with Denno, 368, 390-391, 1774, 1788-1789, 378 U.S. S.Ct. (1964); (now 4-252(f)). L.Ed.2d 908 Md.Rule 736f Rule not, Lodowski is entitled to a new trial. He may how- ever, relitigate the issues determined the holdings we motions, make on today pretrial namely the validity indictment, trial, removal of case for and the suppression of the holdings third statement. Those are the law of the case are conclusive on retrial. QUESTIONS
THE OTHER
PRESENTED
by reason of
Ordinarily,
our reversal
the judgments,
we
not reach
questions presented
would
the other
Lo-
expressed
dowski. But on occasion this Court has
its views
respect
with
though
to certain matters even
their resolution
unnecessary
had become
for the immediate decision. We
guidance
have done so for the
court
on retrial
below
or to indicate to trial judge, the State and defendants our
thinking regarding the law and rules of
conduct matters
of important public
State,
concern. See Jones v.
302 Md.
(1985).
Minimart, Lodowski asked him if he wanted to make some money.
I asked him how. He if I a job asked wanted to do I him, him. know, about, asked what you talking he was first, testimony jury 9. Ferber’s went before the at the trial on the second and seventh counts the indictment. It was in included stipulated, objection preserved, facts as with the of Lodowski in the remaining court trial on the counts. couch, pulled his and he out over to and he went he pumped— which shotgun sawed-off [******] know, do. You
Well, going he to I him what was asked me He anything. me. He wouldn’t tell he tell wouldn’t know, in as soon as if I or out. You to know was wanted I thing, to that kind of something it do with I knew had I something?” ‘cause said, “What, crazy or you are like that. anything to involved didn’t want know, kept asking him that, you I I Then, after just, he know, going happen, to what was what, what was you out, he me I in or kept asking on if was to do. He going said, “What, are information, like. I me kept giving on said, something?” He somebody to shoot you going out, that, me cause he that freaked “Maybe.” When said know, ever, you could Kenny I would thought never that, I said just after—after he hurt but anyone, ever kept saying, He on him, know. kept you questioning said, you going I “Who are “Are in or out?” you shoot?” would, you him he
Also, he me—I asked what asked said, He in, just will I have to do. know—if I’m what bag. to him in a money somebody while threw gun hold a Okay. in or out me if I was then, that, he asked
So after said, “What, I are I me think. him—let again, and asked before, he Like I said somebody?” shoot you going that was security guard shoot a might he have to said sitting in a car at the scene. would be a—that sitting [******] him asking said, just kept it?” I
Then I “Where is ... liquor Virginia He said that—it came locations. of him. store, finally got I out is what perpetration concerning no evidence There was other Virginia. such crime a motion challenged by testimony Ferber *30 Defense counsel at the bench. heard
limine which was argued contemplated that the crime which the subject was of Lodowski’s conversation with Ferber was not the same crime being for which Lodowski was tried. The defense observed that if was talking Lodowski a “about situation involving officer, of a if police death that’s confined ato I liquor Virginia, situation; store think we have one if it’s Greenbelt, confined the Minimart in then I think we have another situation.” The State’s Attorney posi- stated his tion:
Anybody who has a conversation with anybody about officer, a killing police and subsequently charged killing the crime of a police officer anywhere this I think that country, type be, fact, testimony would admissible his of mind, else, as to state if nothing at that particular time.
The had indicated “I’ll judge that let testify [Ferber] anything concerning place a a police where officer was.” The judge ruling on the motion expressly assumed that talking Lodowski was a liquor Virginia. about store in The judge asked: “Why relevant, isn’t if [the conversation] Minimart, ultimate purpose was the he’s [Lodowski’s] just feeling out?” motion denying the in li- [Ferber] judge express mine the made no findings of fact did not give the or a reasons state rule of law in support of his decision.
The suggests State now “considering both that the witness had participate by declined to the time the locale was revealed and that the operandi modus here was identi- described, cal to it is readily inferable that [Lodowski] was describing crime, the instant offense not Virginia a when especially the nexus in time is If this considered.” was evidence, indeed rational inference from the the judge did not so find record. challenged testimony indicated that considering Lodowski was committing crime similar to that committed at the Minimart. Whether he was in fact referring to the Minimart crime different crime judge. determination the trial subject crime, If the of the conversation was Minimart
728
as a voluntary
admissible
testimony may
the
have been
State, 297
191, 210,
v.
admission. Foster
Md.
extrajudicial
—
denied,
cert.
(1983),
U.S.-,
104
S.Ct.
If the conversation
be admissible
Minimart,
the
is whether
it would
question
the
that
of a defend
exception to
rule
evidence
under an
that
prove
not
introduced
may
criminal acts
be
prior
ant’s
trial. See
is on
for which he
he
the offense
guilty
is
333,
State, 297 Md.
329,
(1983);
A.2d 1166
v.
465
Straughn
(1980);
State, 287 Md.
695, 711-712,
If,
testimony
on
Ferber’s
rele
make, on
evidence
challenged,
judge
trial
should
issue,
findings pursuant
procedures
factual
vant
findings
in Cross at 478
2,n.
The Death Sentence on the first count of judgment Our reversal out, of degree wipes murder the first charging indictment course, both the conviction thereunder sentence But imposed valid, thereon. even if the conviction were we would have to vacate the sentence because of errors com- mitted the court the sentencing proceeding. We now consider certain those errors.
Aggravating Circumstances In imposing death sentence under the conviction of murder in degree the first charged the first count of the *32 indictment, found, beyond doubt, court reasonable two aggravating circumstances. of them One was that “[t]he victim was a law enforcement officer who was murdered while the performance (1957, of his duties.” Md.Code § Repl.Vol.) 27, 413(d)(1). Art. See Md.Rule 772A. found, The court evidence, a preponderance of the only circumstance, one mitigating that Lodowski had not previ- ously been guilty found of a crime of violence. Section 413(g)(l)(i). determined, The court by a preponderance of evidence, that mitigating did not circumstance out- § weigh aggravating circumstances, 413(h)(1), obliging § impose death, it to 413(h)(2). the sentence of The court § imposed 413(k)(3). that sentence. Lodowski claims the court was wrong finding as an aggravating circumstance victim, Fletcher, that the Carlton X. inwas the performance his of duties law as a enforcement officer when he was murdered.
The fact that victim a law was enforcement officer “[t]he was while in who murdered his performance of duties” § is established as 413(d)(1) an aggravating circumstance by death of the sentence statute. With certain additions not § relevant, 413(e)(3) here adopts meaning “law en- § 27, forcement as officer” prescribed Art. 727. § 727 Under “any per- “law enforcement officer” includes who, in his is son official capacity, authorized law to make arrests” and who is a depart- member police “[t]he § ment, bureau, 727(b)(3). force or of any county.” The § meaning of “law enforcement officer” set in 727 out does not, however, include a “security privately officer” em- contemplation “special officer” within
ployed
§
§§
Huger
594B(f)(8);
60-70. See
Art.
Art.
State, (1979).
At the time of standing George’s County Department. of the Prince Police police authority he “to full obliged As such exercise was land, air the territorial limits all water and within § 18- County, Prince Md.Code County____” George’s 142(b) (1983). that he was a “law enforce- apparent It meaning penalty of the death ment officer” within § statute, 27, 413(d)(1). the crimes commit- When were Art. for ted, of Police Fletcher on annual leave. Chief rules departmental County Prince testified George’s off-duty “to regulations allowed officers work on week, hours and unlimited on their own up per status to 16 time, He indicated that which include annual leave.” would uniform, use “permitted the officers are to work revolvers____” cruisers, and their service police carry security guards private Many off-duty them work to ac- do not industry. They departmental approval need Thus, employ- Fletcher’s cept employment. private such *33 did not prohibited ment as a not and security guard was The ques- his as a law enforcement officer. affect status performance he “was murdered while the tion whether were, If he of his duties” as a law officer. enforcement fact an in consider- aggravating that would be circumstance not, as a a If his status ation of death sentence. he were officer in not sufficient law enforcement itself would be circumstance. comprise aggravating Md., George’s County, 18-163 of the Prince Section (1983) provides: Code always are Department
Members of the Police held to be the routine duty, although periodically on relieved from subject all times They thereof. are at performance and to call citizens. proper order from the authorities held as fact shall not be they may duty that be off taking proper the of relieving responsibility them from police in any action matter coming to their attention requiring such action. (Emphasis supplied). Qomm’r (1959)
In Police
219 Md.
At the that, outset we reject the State’s under theory § Code, 18-163 of the Prince George’s County the commis- sion a the presence crime in of a police officer is to a sentencing beyond in itself the court find
sufficient officer off-duty police that an reverted reasonable doubt This on-duty theory to an status. overlooks immediately § that provides clause in 18-163 which qualifying to police proper officers take responsibility off-duty to their coming “any is to matter police action limited added). (Emphasis such action.” attention requiring a law agrees question The that “the whether State ‘in of his acting performance officer is enforcement determination____” agree factual And we duties’ is a such is “not settled either the State that determination is off or has duty the fact that the officer undertaken income.” supplement to his Rather private employment of each particular is to be decided on facts question case. competent legally
The record devoid of evidence find, to a sentencing judge beyond for the or jury sufficient Fletcher, doubt, matter as a any requiring that reasonable George’s Department, Police County member of Prince take had come to his attention before proper police to action § George’s County of the Prince See he was killed. 18-163 the evidence indicates that Fletcher contrary, Code. theOn at the he was killed that crimes were was unaware time The State concedes that being presence. committed his closely followed so “the murders Phamdo Fletcher] [of opportunity in time Fletcher did not even have his pay envelope weapon____” his or unholster put down establish beyond the evidence was not sufficient Since crimes had come to his attention doubt that the reasonable killed, that Fletcher had not revert- he was it follows before the status private security guard ed from his status in the any so as to take action of a enforcement officer law his performance duties. could from “a finder of fact infer suggests State and the beginning robbery
the circumstances that shifted presence of Phamdo in the of Fletcher shooting security to a private guard from responsibilities Fletcher’s *35 law enforcement officer.” It opines inference is “[t]his especially appropriate” because Fletcher was dressed in his police uniform and in a sitting police Further, marked car. avers, the State previous Elfadl knew from his employment at the Minimart that Fletcher was in police fact a officer and that the murder “was effectuated precisely preclude succeeding any from law enforcement efforts.” [Fletcher] These facts are not relevant. The test with respect whether Fletcher in the performance was of his duties as a police officer when he was murdered is not whether Lodow- ski and Phamdo knew that police officer, Fletcher was a but whether Fletcher knew an act had occurred or was him occurring obliged which to take proper police action. It follows all from of the above that the sentencing court was
clearly erroneous its judgment that Fletcher was mur- dered performance while of his duties a law enforcement officer. Rule 886.
Lodowski also urges that the sentencing court erred in receiving certain evidence on the issue. The Chief of Police for Prince George’s County was asked to tell the court upon professional “based your opinion, or whether not when shot, ... Fletcher was killed or was whether he was duty, your opinion?” Objection was overruled. The Chief opined:
Based on the of, information that I’m aware at the time a gunshot heard, the man fell beside the cruiser. Officer Carlton Fletcher would have reverted to an on- status, duty merely by the fact that a gunshot had been fired, inflicted; later, had injury course, been it was a The shooting by homicide. itself put would him on an status on-duty point at that in time. 632, 642-643, Franceschina v. Hope, Md. 298 A.2d (1973), quoted we approval Morgan, from E. Basic Evidence, (1962).
Problems at 218 Professor Morgan said that a witness not “in may guise opinion upon a matter of fact include in it a matter of law or the applica- tion of a rule of law to the facts.” He continued: has capacity or a been of a measure a standard
When expert non-expert, or law, no whether fixed witness express opinion permitted qualified, nor however in question or conduct person not the as to whether 643, 298 A.2d 267 Md. at to that standard. up measures 400. trier of fact. Id. noted, is for the we question,
That *36 it is contrary, apparent to the argument the State’s Despite to as he it be the law believed applying was that the Chief that to reach the conclusion he knew them facts as to the his duties as a law of performance in the Fletcher was This was a he was murdered. officer when enforcement not testimony The was of fact. Chief’s for the trier matter admissible. murdered that Fletcher was of its contention
In support as a law enforcement of his duties performance in the while introduce, objection, over to officer, permitted was the State approvals claims for and uncontested evidencing documents children and to Fletcher’s widow monetary of awards with make such awards authorized to agencies various duty. in the line of killed police to officers respect made on that the awards were indicated documents in the performance killed while Fletcher was that basis included workmen’s They officer. police his duties as award, filed a claim death claim and compensation Law Enforcement the United States granted by an award Safety to the Public pursuant Administration Assistance § et (42 Act of 1976 U.S.C. Death Benefits Officers’ made of an award approval claim made and a seq.), Art. (1957, Repl.Vol.) Code Maryland pursuant § cash benefit of a 59A-1, payment provides which killed in the officer law enforcement the survivors of a accom- included documents also The evidence duty. line opinion These consisted the various claims. panying County, George’s Police of Prince Chief of of a former Department, to the Police County Attorney from the letter State, Secretary of Police a letter from the Chief widow, the effect all to from Fletcher’s an affidavit gunshot Fletcher died as a result of wounds received in the line of duty.
The awards here fall within the rationale of the rule that rendered in a civil case is not judgment “[a] prosecution admissible in a criminal of the facts evidence judgment parties determined such because the are dif ferent, proof and because the in a quantum required civil case is required less than that a criminal one.” 3 § (C. Torcia, 1973, Wharton’s Criminal Evidence Cum. Supp.1984). admissible, urging the evidence was the State seizes on the stated exception by Wharton: judgment prove is offered to a collateral fact “[W]here case, innocence, and not to show or guilt may it allowed in evidence.” Id. It is true that the evidence was not offered to show guilt Lodowski’s innocence. But it sentencing offered of the trial stage to establish necessary imposition circumstance an aggravating of a sentence of death. no stretch of the By imagination could the existence of aggravating circumstance under *37 the death penalty statute be considered a fact collateral to issue, the main the namely, whether defendant is to be executed. The evidence here of the claims and awards with their documentation does not exception come within the by relied on the State. It our view that the evidence was inadmissible and that the in overruling court erred the objection to it. Impact
Victim Evidence impact Victim evidence was admitted over at the objection sentencing proceeding. The evidence consisted of a written widow, statement Fletcher’s by a written statement Phamdo’s mother with a picture family, her a written signed by statement members of Phamdo’s all of family, part presentence investigation which were of a report by the Division of Parole and Probation. There was also oral testimony by Fletcher’s widow and Phamdo’s The mother. in testimony graphic statements described detail the impact the murder respec- adverse of each victim had on his statements were family. tive It seems written George’s County to the Prince Victim originally submitted over to the Division Unit and thereafter turned Impact Parole and Probation. Division legislature required that the years ago the
Some a court with a provide judge of Parole and Probation investigation: presentence Md.Code
1) by any judge. in all cases when requested §41, 124(b); (1957, Cum.Supp.) Art. Repl.Vol., 2) sentence the circuit court of “[pjrior any the Division of Correction of county jurisdiction of a or a misdemeanor- felony, a defendant convicted in serious or death to the physical injury resulted which orders to the specifically unless court victim ... § 124(c)(1). contrary particular in a case.” statutory recog- was first afforded impact Victim evidence presen- that a provided nition 1982. Acts Ch. statement impact shall include a victim investigation tence if:
1) defendant, physi- caused committing felony, The cal, or psychological, injury; economic misdemeanor,
2) committing defendant, or death to victim. physical injury caused serious §41, 124(c)(2). Art. investigation,
“If not order a presentence the court does prepare impact a victim statement Attorney may State’s defendant____” to the court and be submitted § 124(c)(2)(h). “The court consider the victim shall sentence____” determining appropriate statement § 124(c)(2)(iii). *38 § 1982, 41, 124(c)(3), 494, as
Chapter Acts codified Art. shall impact victim statement required “[a] offense; victim of the (i) Identify (ii) any Itemize economic loss by suffered the victim as result of the offense with its and seriousness permanence;
(iii) Identify any physical injury by suffered the victim as a result of the offense its along with seriousness and permanence;
(iv) change Describe any personal victim’s wel- relationship offense; fare or familial as a result (v) Identify any request services initi- psychological ated the victim or the family victim’s as a result offense; and
(vi) Contain other any impact information related to the of the offense upon the victim that the court requires. The tied legislature together next victim year expressly 297, impact cases. Acts capital evidence Ch. §41, added July effective reenacted Art. (d) subsection which declared that case in any which the death penalty requested
[i]n ..., presentence investigation, including a impact victim statement, shall completed be by the Division of Parole Probation, and shall be considered the court or jury before whom separate sentencing proceeding is §27, conducted under Art. 413.
Acts (4) Ch. 345 paragraph (c) added subsection § (4) 124. Paragraph provided: deceased,
If mental, the victim is under or physical, legal disability, provide otherwise unable the infor- required mation victim impact [for statement] personal information bemay obtained from the represent- ative, committee, guardian, or family or such as members may necessary. also
Chapter subpar inserted “or the victim’s family” (vi) (3) (c).10 agraph paragraph subsection statutory provisions concerning presentence investigation 10. are (now 4-341) implemented by Maryland Md.Rule 771 Rule but the speak Sentencing proce- Rules do not dures, to victim statements. (now 4-342) non-capital set out cases in Rule 772 Rule capital (now 4-343) and as to cases in Rule 772A Rule contain no reference to such statements.
(1) Lodowski first attacks the admission of impact victim in general. “per evidence He contends that it is se inadmis- in He capital proceeding____” urges sible that “[t]o § 41, extent that Art. permits mandates victim in it is impact capital proceedings, evidence unconstitution- point al.” But he does not directly any constitutional right which admission such evidence violates or to Rather, any guarantee constitutional which it offends. he in talks terms of the admission of such evidence as injecting “an factor.” This due arbitrary may, perhaps, implicate refers, however, process. 27, He to a statute Art. § 414(e)(1), to his The support position. statute commands this to determine “[wjhether Court review the sentence imposed passion, death was under the influence of preju- dice, or other factor.” .the any arbitrary Clearly legislature did not that victim impact arbitrary believe evidence was seen, factor. expressly As we have it has authorized con- cases, sideration of such evidence in and re- non-capital its in quired capital again consideration cases. We observe §41, 124, providing, that the statute so Art. was reenacted §27, 414(e)(1) in the face Art. which related to “arbitrary factors.” legislature spelled has out the types evidence sentencing
are admissible in a capital proceeding. “Any presentence investigation is report” except admissible recommendation as to sentence contained in the re- “any §27, Code, 413(c)(iv). seen, Art. port____” As we have 1983, of 1 July presentence investigation complet- must be ed by the Division of Parole and case any Probation requested investigation which the death is and that penalty statement, must include a victim shall impact which considered the court or jury sentencing before whom the § 124(d). proceeding conducted. Art. Art. § 413(c)(iv) was reenacted 1983 to be effective on the §41, 124(d). same date as Art. Acts Ch. 497. It is apparent legislature intended that victim in capital sentencing proceed- statements be admissible case Furthermore, ings. legislature declared admissible other evidence that the court deems of “[a]ny probative sentence, provided value and relevant to the defendant is accorded opportunity any a fair rebut statements.” Art. §27, 413(c)(v). *40 Supreme recognized Court has that “a heavy burden
rests on those who would attack the
judgment
representatives of the people.”
v.
428 U.S.
Georgia,
Gregg
153, 175,
2909,
(1976)
96
2926,
(plurali-
S.Ct.
[Wjhile we have an obligation insure that constitu- overreached, tional bounds are not not act as may we judges might legislators. as we as
This is in part true because the constitutional test is intertwined with an assessment of contemporary stan- legislative weighs dards and the in judgment heavily 174-175, ascertaining such standards. Id. at 96 at S.Ct. 2925-2926.
The plurality opinion observed:
The deference we of legisla owe the decision the state tures under our federal ... is enhanced system where specification concerned, of punishments for “these are questions 176, peculiarly legislative policy.” Id. at 2926, quoting States, S.Ct. at Gore United 357 U.S. 386, 393, 1280, 1284, (1958)(cita S.Ct. L.Ed.2d 1405 omitted). tion reasons,
For like
we owe the same deference under our
system
State
Assembly Maryland.
General
State,
563,
(1983),
Calhoun v.
Md.
Calhoun
413(c)
did not consider Art.
light of victim
statements
being included
presen
tence investigation reports. But we do not
that the
believe
*41
inclusion of such statements
in the
of
types
evidence de
clared to
legislature
capital
be admissible
in a
sentencing proceeding affects our determination declared in
§ 413(c)
Calhoun that
is constitutional. We found that
Supreme
decisions of the
Court indicate an accord
our
see
view,
631,
45;
Calhoun
Johnson 292
at
468 A.2d
Md.
that “all relevant
information,
439 A.2d
positive as
negative,
during
well as
the sentencing pro
admissible
Calhoun
ceeding.”
297 Md. at
(emphasis
11. The facts and circumstances of the instant case rise to the question impact whether evidence of the Phamdo’s murder had on family Phamdo’s is relevant to a-determination of sentence to be the. imposed upon murdering on Lodowski his conviction Fletcher. words, end, sentencing proceeding impact other in a to that must impact evidence be confined to that which relates to the Fletcher's
741
State,
this
According
Lodowski
Court
273
Henry
131, 150,
(1974)
Md.
emphasized
A.2d
“the
that
fashioned,
sentence
be
should
of the sentencing'
best
judge’s ability, to the
facts
circumstances surrounding
being
crime and the
then
individual
sentenced.” He
posits that
not
impact
victim
evidence does
relate to either
Thus,
those matters.
he would have us declare that
victim impact statements are
despite
legis-
inadmissible
lature’s directives to the contrary. We understand that
legislative
before the
concerning
enactments
impact
victim
statements,
it was not uncommon for the State’s Attorney
in at
five of
larger jurisdictions
least
in this
State
submit such
statements
the court’s
consideration
imposing sentence. These
were
statements
com-
usually
pleted by county
Impact
a
Victim
Unit. We do not believe
that the
language
either then or
Henry
prohibits
now
sentencing authority’s
consideration of a victim
statement. We think that Lodowski construes the phrase
“the facts and
surrounding
circumstances
the crime” too
narrowly.
accepted
In Henry we
as a correct
exposition
the law
scope
sentencing judge’s
inquiry
imposing sentence is
sufficiently
permit
broad
him to
consider the gravity of the offense for which the defendant
147-148,
was convicted. 273 Md. at
A.2d
Early
293.
this Court
“If
observed:
the circumstances
accompanying
crime are of unusual aggravation
punishment
ought to
State,
severe.”
unusually
527, 534,
Mitchell v.
82 Md.
(1896).
s)c s]c 5)5 Jj< % impact of the crime the victim is a relevant [T]he surrounding circumstance the commission the offense presentence and thus can be included in the properly Id. report. 23.
(2) second on victim im- phase Lodowski’s attack he contends that pact evidence quoting Compendium ABA 12. The court from Model Correction- Standards, (1972, 2.3(ii)(A) Legislation and Probation § al Standards Supp.1975) respect presentence report. statement, Maryland Except as to victim we find no statute, published regulation of a rule or which delineates contents report. reports presentence completed Presentence Division of however, Probation, invariably descrip- Parole and contain a detailed surrounding of the crime it as did the tion circumstances report presentence investigation in the instant case. *43 [assuming the admissibility of the written victim impact case, statements in this it was error to allow the addition- al testimony live of the victims’ survivors. § that,
He reasons 41, 124(c) (d) since Art. provides for impact victim statement—and “clearly imports that the § statement submitted is to 124(c) be written”—and since (d) does not provide witnesses, for use of live live testimony precluded. He “submits that it was not the legislative permit intention to live victim impact testimony.” do agree. We not §
Unquestionably, presentence reports for which provides are to be written. It is equally clear that live testimony is not specifically authorized. do think, We not however, that these facts demonstrate a legislative intent to preclude live testimony. Section is concerned only with victim impact evidence that is submitted to the court or jury way a statement included in a presentence investiga- tion report. It does not follow that because a victim impact statement under the section must necessarily writing and included in or made a part presentence of a investiga- tion report, victim impact evidence not may be submitted by § testimony. While 124 does not expressly authorize the submission of such means, evidence other neither does it prohibit the use of live testimony. It simply does not deal the question whether victim evidence may be placed before the sentencing authority orally. legisla- tive intent suggested by preclude Lodowski—to live victim impact testimony—is apparent not from the language and provisions the statute.
This Court has long recognized the broad discretion of a sentencing judge. We said in State, Bartholomey v. 175, 193,
Md.
(1972)
any
ought
other
that a
him
judge
matters
to have before
in determining
imposed.13
the sentence that should be
*44
State,
536,
540,
(1975);
See Johnson v.
274 Md.
It to their discretion, broad sen tencing had judges impact considered victim evidence even before legislation mandating the first impact victim state ments. During consideration of the first measures sought require preparation statements,15 impact victim that, testimony disclosed in those counties with victim/wit ness programs, assistance victim statements were already being prepared, sometimes the request of judges. A staff memorandum for the Senate Judicial Proceedings concluded, however, Committee that “each program varies greatly operation its offers, and the services that it especially sentencing input where there seems to abe case by approach.” case *45 At on hearing (1983), S.B. 523 which would have required, causes, in juvenile consideration testimony or a impact statement, victim a representative of the State’s Association Attorneys’ indicated present that “under law there is no prohibition against victims testifying at the It disposition. is now within the court’s discretion to permit a victim to impact describe the of the juvenile’s act.” In event, any impact “the of the child’s act on the victim is already included in reports the intake for the more serious cases,” according to the Juvenile Services Administration. is
It evident that legislative in enacting intent victim impact legislation statement towas establish minimum stan- dards for the provided information to be to judges and to make this information in many available cases as fiscal Thus, constraints allowed. required statements were in all proposed 14. The Governor has S.B. 638 and H.B. 1502 which are now awaiting Assembly. action in the General These bills seek to enact a comprehensive scheme in the nature of a victim and witness bill of rights. bills, Two provide other S.B. express 253 and H.B. authoriza- family tion for the victim or to address the court. (1981) (1982) 15. S.B. 124(c)(1) failed. S.B. enacted Art. § (3) through substantially appears as it now. (1982). 16. Senate Committee file on S.B. 50 and in misdemeanors felony cases all “which resul[t] was, The legislature serious or death.” physical injury however, assistance that some victim/witness aware in all cases the circuit programs provided services before courts, instances, legislature and in some all courts. also was that the Division of Parole Probation aware services, in to its intended to order fulfill rely these Thus, it clear impact under statement. is duties the victim extend, restrict, than legislature that the intended rather existing practice. easily accomplished by imposing goal
This was most completion the statements primary responsibility only jurisdictions 6 local had vic one State since agency, programs and those programs,17 tim/witness assistance politics.18 local subject vagaries were version, in its notes, original “[significantly, Lodowski the statement Bill expressly provided Senate 132 [1983] family a statement court take the form of might enacted, however, provision was stricken As member. measure, H.B. companion 132 and the from bill.” S.B. 70, actually provided: statement
(1) case in every which victim section, or member of the the victim a this required by sen- is entitled address the family immediate victim’s sentence, imposition tencing jury] before judge [or sentencing judge. [presiding] application on written affidavit. may person The address *46 made, sentencing is (2) If but timely application of the victim the address without benefit conducted for a reason immediate family the victim’s member of court, imposed the shall be sentence attributable invalid. City, County, Baltimore jurisdictions Anne Arundel were
17. These County, County, Montgomery and Prince County, Howard Baltimore George's County. of a County program terminated on election Mary's had been 18. A St. Attorney. State’s new (3) If a sentence is invalid provisions under the of this subsection, sentencing a new hearing shall be conducte d.19
Thus, S.B. 132 H.B. 70 provided would have for testimo- ny impact addition to the victim provided statement and for a sentence to be invalidated absent this testimony. invalidating
Provisions the clearly sentence the worried legislators. memorandum, A evidently prepared by staff of Committee, the House Judiciary stated, major practi “[t]he problem cal both bills 68 and 70 is the possibility placing the defendant in jeopardy a second time during sentencing rehearing.” The memorandum also addressed a concern about live testimony, which had raised been opponent However, of S.B. 132. posited staff that “[a]llow ing the victim to address factfinder probably would constitutional, since the Supreme Court has approved sen tencing procedures encompassing consideration of aggra vating circumstances. The judge would have to exercise supervision however, close procedure, this because the prejudice to the defendant in such a easily situation could its overcome relevance to the proceedings.” The memoran that, dum concluded “House Bill 70 would be acceptable, however, if [invalidating lines were [the] sentence] The deleted. statute would have no teeth after such a deletion provide but it would personal input toward which the statute is aimed.” The Senate S.B. 132 amended alia, inter permit, mandate, rather than testimony this provisions to strike invalidating the sentence. The alia, House subsequently strike, amended S.B. 132 to inter provisions for live testimony and to substitute §41, codified as Art. language 124(d). refused, The Senate language language bracketed indicates in H.B. 70 that did not 19. appear S.B. 132. provided required H.B. if victim statement was not 20. judge presented and the victim or a member the immediate timely family application, made the sentence was invalid. *47 748 fact, and, first, House to concur with the amendments
at However, 68. onto H.B. S.B. grafted provision the same session, on the last day 132 had returned been House, to avoid evidently acceded to finally the Senate losing entirely. the measure which to pass upon is “a reed of a bill weak failure
The. legislative intent. Police Comm’r v. determining lean" in 412, 420-421, (1977), A.2d quot- 379 1007 281 Md. Dowling, 399, 406, 354 Adm., 277 Md. ing v. Mass. Transit Harden however, noting the con- (1976). arguable, It is A.2d 817 testimony mandatory live should be cern over whether legislature that, in the final permissive, analysis, any event thought testimony that live was admissible providing necessary. no for it was legislation expressly seen, fact, in the have for this found as we Support view that, in juvenile legislature specifically aware that the least, legisla- If the testimony live was admitted. causes at have abrogate practice, this it could ture had intended exer- limit the discretion taken affirmative action to broad by judges. cised sentencing that a concept
It is not a new and unusual
discretion,
court evi
open
entertain
judge may,
his
long
This has
imposition
sentence.
dence relevant
Indeed, in the
over the
past, dispute
established.
been
it in
obtaining
did not focus on
receipt of such evidence
it out of the courtroom
gathering
rather
open court but
permitted
had not
persons
from
whom the defendant
been
cases, however,
or to cross-examine. The
which
to confront
consider informa
sentencing judge may
establish that
tion,
outside the courtroom
though it was obtained
even
evidence,
indicate
to the strict rules
regard
without
obtaining
open
it in
no
clearly
impediment
that there was
York,
testimony.
v. New
through
court
See Williams
337
1079, 1082-1083,
1337
241, 246-247,
S.Ct.
93 L.Ed.
69
U.S.
632;
State,
Md. at
425 A.2d
(1949);
Logan v.
540-542,
113;
A.2d
Bar
State, 274 Md. at
Johnson v.
696;
A.2d
Farrell v.
State, 267 Md. at
v.
tholomey
863;
State, 201
355, 131 A.2d
State,
Md.
Driver
*48
Md.
Thus,
Remaining Since there may be a on all retrial counts the indict- ment with a of guilt determination or innocence evidence admitted, then we see no need to review the remaining questions presented by Lodowski.
SUMMARY I. Our Holdings
(1) In rejecting Lodowski’s contention that the Grand for Prince Jury George’s County was not selected aby method which reasonably designed to produce a jury State, Bartholomey noted 21. We Md. n. 297 A.2d (1972), supporting citations: Any might judgment information which influence the of the sentencing judge, himself, not given received from the defendant presence, (without source) necessarily disclosing in his should its opportuni- called the defendant’s attention so toas afford him an ty to refute or discredit it. community, of the we cross section representative indictment returned was valid. hold that the motion Therefore, denial of Lodowski’s court’s indictment was not erroneous. dismiss the Art. 20 of the (2) contention that rejecting Lodowski’s § IV, of the Rights over Art. prevails Declaration of the remov- Constitution, and his contention that Maryland § IV, equal protection 8 deny al of Art. provisions removed law, properly indictment was we hold County. the Circuit Court for Charles for trial to Lodow- Therefore, overruling did err the court not *49 suggestion for removal. to the State’s objection ski’s that the writ- (3)(a) sustaining Lodowski’s contention by him was because given involuntary ten third statement right his and Fourteenth amendment he denied Fifth was counsel, the third of we hold to the assistance inadmissible. statement was taint- of third so admission the statement improper state- first and the oral second the written statement ed The admission of them inadmissible. ment as to make not harmless error. the third statement was mo- Therefore, denying erred in Lodowski’s the court to the statements. suppress tion in the admitted (b) The both three statements were first, and seventh counts of the second jury trial before six remaining court the counts. the of and the trial before of trier of the consideration the presentation Their for each trial. It respect to was error prejudicial fact judgments all of the entered a reversal of requires a new trial. Lodowski to entitles - the holdings to of validity At our the (c) retrial of admissibility for and the indictment, its removal trial are They the of this case. third statement are law may relitigated. not be conclusive Trial Guidance Expressed Our Views II. of Court Stage the Trial
(1) The Guilt (a) The admissibility vel non of the testimony of Ken- neth Ferber concerning the solicitation him Lodow- ski to participate in the commission of crime requires factual findings by the trial in the judge light applicable law regarding admissibility of such evi- dence.
(2) The Punishment Stage Trial
(a) With to respect circumstances, aggravating judge clearly erroneous in finding that Fletcher was killed while the performance of his duties aas law enforcement officer.
(i) The opinion of the Chief of Police and others is not admissible to show that Fletcher was in per- formance of his duties as police officer he when was killed. and awards and
(ii) presented Evidence as claims on the fact that based paid proceedings civil benefits of his performance killed while in the Fletcher was officer is not admissible a law enforcement duties as aggravating fact as this criminal cause show that imposition puni considered circumstance *50 shment.22
(b) impact Victim evidence is
(i) constitutionally proscribed; not (ii) relevant to a the sentence to be determination imposed; express
22. The view we in this criminal cause that Fletcher was not in performance of his duties as a law enforcement officer when he was killed no impact has relation to nor on the awards and benefits made to Fletcher’s survivors as claimants in civil actions. We observe that, thing, proof for one the measure of is different in the two proceedings. doubt; beyond Here the fact be must found a reasonable may in the civil action merely by the fact preponder- be established And, course, ance of the entirely evidence. there are different policy fundamental considerations involved. by pre of a way (iii) only writing not obtainable also, investigation report, sentence but at the discretion court, through testimony open live court.23 of the III. Other Issues nor a view
(1) express determination do not make a We first and the written statement admissibility as to if are they Lodowski given by the oral second statement receipt in reason of the their taint offered absent third statement. involuntary written evidence of the in the on all counts (2) may retrial Since there guilt or innocence determination indictment with a made, then we have rulings and then admitted evidence remaining questions presented no need to reach Lodowski. TO REVERSED; CASE REMANDED
JUDGMENTS A COUNTY FOR FOR CHARLES THE CIRCUIT COURT BY BE PAID PRINCE TRIAL; TO COSTS NEW COUNTY.24 GEORGE’S
ELDRIDGE,
concurring.
Judge,
portions
all
with
agree
judgment
I
victim im-
dealing with
except the section
opinion
Court’s
section are
in that
expressed
The views
pact evidence.
again
this
Furthermore,
not arise
may
the matter
dicta.
majority
and remand. As both
our reversal
case after
illustrate,
opinion
concurring
Judge Cole’s
opinion
of this
in case
impact
of the victim
evidence
admissibility
I
adhere to our
would
constitutional issues.
presents
type
ruling
questions
constitutional
upon
of not
policy
normal
Rutherford,
See,
unnecessarily.
e.g., Rutherford
(concurring
366-367
opinion),
364 n. 6 (majority
Md.
(1983),
cited. Conse-
and cases there
quently, I would refrain from expressing opinion con- any cerning admissibility of the impact victim evidence at the prior sentencing proceeding.
COLE, Judge, concurring. I fully agree that appellant’s with Court conviction and sentence must be reversed and remanded for a new trial. I join therefore of portion opinion. the Court’s The Court, however, on to goes address in dicta admissi- of bility victim impact evidence in capital sentencing pro- ceedings. I agree Because cannot reasoning with the em- ployed by issue, the Court in its discussion I of that write separately. general
The Court makes in two its observations discus First, sion on victim impact suggests evidence. the Court there is no constitutional impediment legisla ture’s determination impact that victim statements are rele Second, vant a capital sentencing proceeding. Court intimates that the victim’s family persons may, or other the discretion of the presiding judge at the sentencing stage trial, testify open regarding court impact upon offense the victim and family. members his major problem with these twinfold conclusions they ignore eighth proscription against amendment cru el and punishment.1 unusual As the Court has not fit seen to examine this critical constitutional I provision, believe it premises, essential to detail the reasoning, implications unnecessarily Court’s dicta. broad preface As a I my opinion, wish to make three prelimi- First, I
nary quarrel observations. have no the use impact relevant victim evidence from himself the victim sentencing non-capital proceedings. Victim evidence emotional, that details the relevant physical, and financial eighth proscription against pun- 1. The amendment cruel and unusual applies through ishment to the states the fourteenth amendment due 660, 666, process California, clause. See Robinson v. 370 U.S. 82 S.Ct. (1962). 8 L.Ed.2d *52 the often upon provides
harm victim by caused the offender enhances the court’s information that useful and valuable benefit, sentence. This appropriate to fashion an ability to restore and coupled participation, acts with active victim Second, system. the criminal justice increase confidence in the in case are limited to the use of I raise this concerns sentencing capital proceedings. victim evidence in impact This I the total of suggest is not advocate abolition sentencing in impact capital proceedings; victim evidence regard to however, admitted due this evidence must be Third, minimize the miserable the I do not Constitution. a result of these families suffered as ordeals these have I to the considerable emotional crimes. Nor am insensitive the families of murder victims. problems generally by faced it, duty is to Nevertheless, paramount I the Court’s see fairness and fundamental preserve intégrity the citizen under system guaranteed every justice criminal constitutions. our federal and state
I “forgotten has often been the The victim of lawlessness his has neglect system,2 in criminal person” justice disgrace.” President’s as a “national been characterized Dec. Crime (Final Report vii Task Force on Victims of however, 1982). legisla federal and state years, In recent enacting to redress this situation attempted tors have victim meaningful and enhance designed to increase laws of victim One method proceedings. in criminal involvement is the use growing popularity gained that has involvement sentencing process.3 statements impact victim of 10, Cong., reprinted in 1982 S.Rep. 2d Sess. No. 97th 2. See 2516; Davis, & Cong. Kunreuther & Admin.News U.S.Code Connick, Disposi- Role the Criminal Court Expanding Victim’s Experiment, J.Crim.L. & Criminol- The Results Process: tional (1984). ogy impact use of victim state- jurisdictions authorize the At 3. least sentencing input process. See form of victim similar ment (1984); (Supp. 12-253.4 § Ariz.Rev.Stat.Ann. 12.55.022 Stat. § Alaska defined, Broadly impact a victim statement is an objective medical, financial, description physical, and emotional injuries inflicted upon offender the victim. Supreme not Court has determined whether the use victim statements capital sentencing proceed-
ings eighth violates and fourteenth amendments. Nevertheless, a careful review death many penalty *53 cases decided the Court in last Supreme the thirteen years convinces me that the unbridled use of victim impact in capital sentencing evidence proceedings is on a direct collision course with the constitutional against ban cruel punishment. unusual
II As observed, this Court recently “[a]ny review Su- preme Court capital case law on punishment must begin Furman v. 238, Georgia, 2726, 408 U.S. 92 33 S.Ct. 1984-1985); 75-2502(c) (Supp.1983); Ark.Stat.Ann. § Cal.Penal Code 1203(h) (West Supp.1985); (West § Conn.Gen.Stat.Ann. 54-91c § Supp. Pamphlet 1983); (West Supp. 1962 to Fla.Stat.Ann. § 911.143 1985); (Burns 1985); Ind.Code Ann. § 35-38-1-9 Iowa Code Ann. (West Supp.1984-1985); 21-4604(2) § 901.3 (Supp. Kan.Stat.Ann. § 1984); (West 1984); La.Code Crim.Proc.Ann. art. 875.B Me.Rev.Stat. 17-A, (Supp.1984-1985); (1957, Ann. tit. § 1257.2 Md.Code 1984 Cum. 41, 124; Supp.), 279, (Michie/Law. Art. § Mass.Ann.Laws ch. 4B§ Co-op.Supp.1985); lb(b) (West Supp.1985); Minn.Stat.Ann. § 609.115 (1984); (Cum. Mont.Code Ann. 46-18-112 § Neb.Rev.Stat. 29-2261 § Supp.1984); (1981); Nev.Rev.Stat. 3 § 176.145 N.J.Stat.Ann. § 2C:44- (West Supp.1984-1985); 6.b (McKinney N.Y.Crim.Proc.Law 390.30 § 1983); (Page Ohio Supp.1984); Rev.Code Ann. 2947.051 § Okla.Stat. 22, (West Supp.1984-1985); 144.790(2), Ann. tit. 982 § § Or.Rev.Stat. (4) (1983); 12-28-3(10) (Supp.1984); R.I.Gen.Laws § S.C.Code Ann. (Law.Co-op.1985); 40-35-207(8) 16-3-1550 § Tenn.Code Ann. § 13, (1982); (Supp.1984); tit. Vt.Stat.Ann. § 7006 Va.Code § 19.2-299.1 (Supp.1984); (1984); -7 W.Va.Code 61-11A-1 to Wis.Stat.Ann. §§ 950.04(2m) (West Supp.1984-1985); 32(c)(2)(C). § Fed.R.Crim.P. See generally Sentencing 3-204(9), Unif. Model and Corrections Act 10 § 1985) (Special Pamphlet presentence 78 (recommending U.L.A. report any relating sentencing include statement submitted investigative agency); victim offense or the President’s Task 18, (Final 1982) Report (recom-
Force on Victims Crime 33-34 Dec. mending governments require impact that federal and state victim sentencing). statements at
756 State, 417, Trimble v. (1972).” 387, 300 Md. 346 L.Ed.2d denied, 469 U.S.-, cert. 1143, (1984), A.2d Each Justice in Furman (1985). S.Ct. 84 L.Ed.2d dis opinion concurring either in or an individual authored capital striking punish from the down senting judgment sup Georgia in and Texas. Five Justices ment statutes opinion, curiam while four Justices ported per the Court’s are relevant opinions Three of these dissented. here. discussion Douglas, concurring judgment, argued
Justice
penalty’s arbitrary
discriminatory
the death
con
equal protection
it unconstitutional under
rendered
against
cept
eighth
proscription
amendment
implicit
particular,
Doug
Justice
punishment.
cruel and unusual
then in effect
sentencing procedures
las
condemned
sentencing
they
and Texas because
vested
Georgia
wheth
deciding
with “uncontrolled discretion”
authority
Furman
imprisonment.
punishment
er to
impose capital
supra, 408 U.S. at
Georgia,
92 S.Ct. at
(Douglas,
concurring).
at 357
J.
L.Ed.2d
*54
Douglas,
and White
to Justice
Justices Stewart
Similar
of
Jus-
upon
penalty.
the
the death
focused
administration
tice
found these statutes unconstitutional because
Stewart
a
imposed
wantonly
freakishly
upon
the
and
penalty
Id.
308-10,
at
757
the sentencing
tion to
authority.
states, however,
Other
read Furman
as
requiring
mandatory
penalty.
death
These statutes reached the
Supreme
and,
Court
in a
1976
decisions,
plurality
series of
upheld
Court
those statutes
providing guided discretion to the sentencing authority,
v.
Gregg Georgia,
153,
2909,
428
U.S.
96 S.Ct.
49 L.Ed.2d
Florida,
(1976);
242,
v.
2960,
859
428
U.S.
96 S.Ct.
Proffitt
Texas,
Jurek v.
(1976);
262,
as
that
the death penalty
imposed
“could not be
sentencing
under
procedures that created a substantial
risk
it
be
would
inflicted in an arbitrary
capricious
manner.” Gregg
Georgia, supra,
188,
U.S. at
(Stewart,
S.Ct.
J.,
at
L.Ed.2d at 883
joined by
Stevens, JJ.).
Powell &
light
In
this interpretation,
“Furman mandates
that where discretion is
afforded
sentencing
on a
body
grave
matter so
as the determination
of whether a human life should
taken or spared,
be
discretion
be
must
directed
suitably
and limited so as to
minimize the
wholly
risk
arbitrary
capricious
”
action.
Id. at
S.Ct.
An analysis of the death penalty upheld statutes the Supreme in Gregg, Proffitt, and Jurek reveals that Court methods of channel- general
the three incorporated statutes sentencing in the the discretion vested izing guiding and First, statutes created a bifur- discretionary the authority. guilt the be determined whereby cated trial accused’s would Second, au- the statutes punishment. from his separately those certain penalty involving the cases thorized death circumstances, sentencing directed the au- aggravating circumstanc- mitigating to consider the existence thority Third, they allowed es. the statutes were valid because sen- capital review the expedited appellate punishment or arbitrary imposition the random against as a check tence 695, State, 287 v. Md. penalty. death See Tichnell the 830, 723-24, (1980). general These three 415 A.2d sentencing authority’s discretion guiding methods of concern of the basic Furman therefore addressed to death being capriciously were sentenced defendants arbitrarily. guided discretion of discussing
In addition to
sentencing proceedings,
plurality
in capital
sentencer
nature of
emphasized
objective
and Jurek
Proffitt
a defendant should be
into the
whether
inquiry
question
Florida,
supra,
sentenced to death. See Proffitt
J.,
(Powell,
at
It thus guides and focuses procedure capital-sentencing circum- particularized consideration of objective jury’s of- the individual of the individual offense and stances impose a sentence of death. before it can fender (emphasis supplied). Id. statutes, the Court guided discretion
In contrast to these mandatory penalty death statutes Woodson found the plurality unconstitutional. Woodson and Roberts it failed North Carolina’s statute because invalidated arbitrary satisfy requirement by replacing Furman’s basic
759
and wanton
discretion with
jury
objective
standards
regularize,
guide,
and make rationally reviewable the sen-
tencing process
capital cases. See Woodson v. North
Carolina,
303,
supra,
This Court has previously recognized that
“[f]or
sentences,
determination of
justice generally requires
consideration of more than the particular
acts
which
the crime was committed and that there be taken into
account
circumstances of the offense together with
the character
propensities
of the offender.” Penn
sylvania
Ashe,
rel.
51,
ex
Sullivan v.
302 U.S.
55
58[,
59, 61, 82
43,
(1937).
S.Ct.
L.Ed.
Consideration
46]
both the offender and
the offense
order
arrive at a
just
appropriate sentence has been viewed as a pro
gressive and humanizing development. See
v.
Williams
York,
[241, 247-49,
1079,
New
337
1083-84,
U.S.
69 S.Ct.
1337,
(1949)];
93 L.Ed.
1342-43
v. Georgia,
Furman
[su
402-03,
pra,
2810-11,
Id. S.Ct. at L.Ed.2d omitted).
Subsequent Supreme decisions Court have con- firmed that the thrust its punishment decisions capital must authority’s discretion sentencing
has been that the
as to immunize the risk of
and limited so
suitably directed
See,
capricious
Spaziano
action.
wholly arbitrary
e.g.,
-,
Ill originally statute impact evidence Maryland’s victim since 1982, and has various revisions undergone enacted in (1957, See time. Md.Code Art. Cum.Supp.), § 124. provides This statute kinds currently various information See be included in victim statement. impact § 124(c)(3). id. information, noted, That it should deals and, with the impact upon large crime to a victim extent, 124(c)(3) family. provides: victim’s Section’
(3) A victim statement shall: (i) offense; the victim the Identify (ii) Itemize economic loss suffered any by the victim as offense; result of the (iii) Identify any physical suffered the victim injury as a result of the offense its along with seriousness and permanence;
(iv) change Describe any personal the victim’s wel- fare or relationships offense; familial as a result of the
(v) Identify any request for psychological services initi- ated by the victim or the family victim’s a result of the *58 offense; and
(vi) Contain other related any impact information to the upon offense the victim or victim’s family the requires. the court statements,
Victim impact which presen- are included in a tence investigation report, permitted were the fol- only lowing prior situations to 1983: defendant,
1. The in committing felony, physi- a caused cal, psychological, victim; or economic or injury defendant, 2. The in committing misdemeanor, a caused or death serious physical injury the victim. § 124(e)(2)(i)(l)-(2)
Id. alone, (emphasis supplied). Standing provisions do their by these not terms authorize a victim impact in capital statement a sentencing proceeding because the word “death” is from See felony category. omitted the § 124(c)(2)(i)(l). id. prior 1983, Therefore the only situation § 124(c) under in which a victim impact statement was admissi- when ble a victim died as a result of a crime was where the the committing defendant caused victim’s death while a misdemeanor, such In manslaughter by automobile. § 124(d), however, enacted Assembly the General state- impact
which authorizes the use of victim expressly death requests ments in case in the any which State 124(d) entirety: in its provides Section penalty.
(d) penalty requested the death is any case in which §27, presentence a in- investigation, Article under statement, impact a victim completed shall be cluding Probation, be Parole and and shall by the Division of separate before whom the by jury considered court is conducted under Article sentencing proceeding § 413 citations [Emphasis supplied; omitted.] statute, however, This does not authorize use of victim is impact every case where defendant statements murder, authorizes these statements only convicted of but degree in a first penalty when the seeks the of death State for that specif and obtains conviction prosecution murder provision ic crime. This conclusion reinforced § in the used 124(d) only that allows this evidence to be are “separate proceeding.” Capital cases sentencing Moreover, separate such only requiring proceedings. cases for first penalty may death be considered only because the statute degree, the first degree principal murder state general impact use of victim necessarily precludes cursory A specifically ments other than as authorized. § 124(d) unambiguous language clear glance at the reason, not, did for whatever legislature indicates that involving prosecu a murder address other circumstance any admissible, statement tion where a victim would aAs requests penalty. the State the death except when *59 im peculiar statutory arrangement, result this victim is situations where not authorized those pact statement not a death that felon is felon causes the victim’s case.4 degree in the in a first murder degree first principal 124(d) accompanying light legislative history sheds no 4. The § legislatively history this underlying void. The this created rationale legislation, however, 124(d) was in which reflects the studied haste § waning was inserted in a Senate bill in the considered. Section 124 I it, As see the primary thrust of appellant’s argument is the use of impact victim evidence in this capital sen tencing proceeding is constitutionally forbidden amounts to an “arbitrary factor” in violation of Md.Code .5 (1957, § 1982 Repl.Vol.), 27, Art. 414(e)(1) Evidently impa tient with appellant’s failure to refer precise constitu provisions tional involved, the Court dismisses appellant’s argument on the basis that “the legislature did not believe that victim impact evidence was an arbitrary factor.” my judgment, the Court in making this statement complete ly misses the point. point The is whether the admission and use of victim impact evidence in capital sentencing proceed ings comports with the Constitution, not what legisla ture may perceived. have The Court skirts the obvious eighth amendment issue appellant’s argument. Unlike Assembly. See hours of the 1983session of the General Sess. ly, S. 386th (1983) (enacted 297). Interesting- as amended at Md.Laws originally provision concerning this bill lacked a the use of victim Instead, impact capital sentencing proceedings. bill statements in originally designed permit family
was the victim or his immediate bill, adopted sentencing. to address the court before The Senate Delegates approval. and it was to the House of forwarded Judiciary provisions relating House Committee recommended that the to victim allocution be struck in favor of an amendment that would any case in which the death authorize victim statement penalty requested. is The Senate acceded to these amendments and the bill so enacted. 5. Whenever penalty the death imposed, required this Court is review the sentence on the record in expedited accordance with the process (1957, review set forth in Md.Code Repl.Vol.), Art. 414(a)-(c). Therefore, § charged this Court is determining, inter alia, "[wjhether the sentence of imposed death was under the influ- passion, prejudice, ence of any arbitrary other Id. factor[.]” 414(e)(1). If imposition § of the death sentence was influenced "arbitrary 414(e)(1), factor” under § the sentence must be set aside and the case remanded sentencing 695, 728, for a new proceeding under State, 413. See § Tichnell 287 Md. 415 A.2d (1980) (Tichnell I). The analysis constitutional I equally set forth is view, applicable, my 414(e)(1) to the reasons has § been violated. *60 however, Court,
the I address that issue and conclude that the in this is impact victim evidence case unconstitutional.6
A. At trial court allowed into sentencing proceeding the statements Officer Fletcher’s impact by evidence the victim one Putting aside for and Minh Phamdo's mother. widow Minh’s by moment the issue of the statement whether case, of mother in this slightest portions had the relevance have the statement Fletcher’s widow should never been by they on the basis that constituted allowed into evidence of and fourteenth eighth factor arbitrary violation amendments. emphasized
Time
Court has
again
Supreme
and
capital sentencing
in a
proceeding
the sentencer’s discretion
clear,
by
specific,
objec-
must
guided
be channeled and
unnecessary
proceeding
facial
Although
6.
in this
to determine the
it
statute,
constitutionality
of
victim
evidence
I nonetheless
124(c)(3) would
portions
§
substantial
of
have serious doubts that
minimum,
satisfy
evidence intro-
the Constitution. At a constitutional
capital sentencing proceeding
be
as to
duced
must
relevant
at a
spared.
or
must
the accused’s life be taken
information
whether
be
of the
course,
relevant,
arbitrary
capricious
avoid the
infliction
of
standard,
penalty.
light
portions
this
of
In
several
death
instance,
(e.g.,
124(c)(3)
identity
pass
of the victim
muster. For
§
relevant,
officer)
124(c)(3)(i),as is
informa-
police
§
is often
see
other
goes
and the circumstances
tion that
of the
to the character
defendant
offense,
124(c)(3)(vi).
§
see
however,
124(c),
by
rarely, if
§
called for
would
Other information
ever,
sentencing proceeding.
particular,
capital
in a
be relevant
family
requested
a result of
psychological services
the victim's
as
addition,
124(c)(3)(v). In
it is
are
See §
the offense
irrelevant.
any
the victim suffered
difficult to see
relevance
whether
offense,
the victim
loss as a result of the
unless
course
economic
.
during
robbery
similarly
course of a
economical-
was murdered
124(c)(3)(h).
124(c)(3)(iii),which
ly-motivated crime. See
Section
§
any
injury
physical
suffered
deals with the identification
along
perma-
a result of the crime
with its seriousness
victim as
nence,
superfluous
capital
Last-
in a
case for obvious reasons.
seems
relationships
any changes
result of the
ly,
in the victim’s familial
124(c)(3)(iv).
sentencing
See §
offense are irrelevant to the
Otherwise,
decision.
always
imposing
penalty
a factor in
the death
would
leaving family.
be as
Few factors could
whether the victim died
124(c)(3)(h),
arbitrary
as those
§
irrelevant and
called
124(c)(3)(v).
124(c)(3)(iii), 124(c)(3)(iv),and
See,
tive standards.
e.g.,
Florida,
Barclay
supra, at-,
1144;
U.S.
S.Ct.
77 L.Ed.2d at
Godfrey
*61
supra,
1764-65,
v.
446 U.S. at
Georgia,
S.Ct. at
406;
L.Ed.2d at
Carolina,
Woodson North
supra,
2990-91,
U.S.
S.Ct. at
Fletcher’s widow submitted a victim impact statement that detailed the emotional sustained her injury and her young daughter, statement, Carlita. The use of this in light content, of its had no purpose other than to arouse and incite passions of the sentencing authority:
I still cannot understand how a human being could walk up to another person and shoot him brutally with a shotgun, giving without it I thought. a second still have nightmares about how Carlton must have looked and felt when he saw a shotgun pointed at him. Then I think about way he shot in was the neck and then in the shoulder, a chance without to defend himself—I can only hope that he did not feel pain! much I remember when I went to the funeral home to see his body for the first time after the crime. It then of his death reality hit and it fully me was hard to over, realize that it was all I get and didn’t even a chance to be with him in the I end. can still see my father holding up Carlita to see her daddy and see how confused was, and she upset hearing her asking my father “why does my daddy long have that scar on his neck”. It really scares me to think that there people walking are the street who are capable taking person’s another life feeling no remorse. Since this crime I am scared to trust anyone.
However deserving this is of sympathy, it remains that it does not channel and guide the sentencer’s discretion in a By appealing manner.
constitutionally permissible sentencing authority, prejudices passions factor” represent “arbitrary passages quoted above view, arbitrary it is base my process. the decisional die should live or an accused decision as to whether the crime has of impressions widow subjective basis decision on penalty the death Predicating funeral. and the the pre- us full force to propels this of evidence type capital punish- imposition the arbitrary Furman era of statement from Mrs. Fletcher’s ment. Further passages conclusion: highlight this this and devastation since in a state of shock
I have been changed my whole drastically It has crime has occurred. children. my and the future future children and felt that religious I and were both Carlton *62 to have a well-rounded and father needed mother both forward to the birth looking both We were upbringing. crime, I six the time of the was second child. At of our imagine raising two I still cannot pregnant. months that Carlton won’t a father and know children without hurts child. It when to see his second have a chance even fathers, knowing my their I see other children with love and hold now who can don’t have a father children them. totally he was family person, the perfect
Carlton was find a man like a miracle to his It was family. devoted to had cre- We something very special. had like him—we in life. We anything could withstand ated a love that wife, of friends. We but best not husband only were find other, is hard to for each which and trust respect had couples today. inside, a empty I feel alone and happened, since this Ever I still think away. can take that no one ever feeling taken us to he had together, we had day the last about think of all help I can’t but the “Enchanted For[e]st”. future, so all of which were for the plans we had I since was I known Carlton changed. have abruptly I boyfriend. old, only he first my fourteen was years am I years now 28 old and feel like half of life my has been taken away. part When he died of me died too. death, The punishment unique in its severity and irrevo- cability, Gregg supra, see Georgia, U.S. at S.Ct. at at L.Ed.2d should turn upon not these considerations. 124(c)(3)(v)
Section provides that the victim state- “[i]dentify request ment any psychological services initi- ated by the victim or victim’s as a family result The victim impact statement submitted by offense[.]” Fletcher’s widow a lengthy contains account of the psycho- logical impact Carlita, of the crime upon Fletcher’s minor daughter. gripping it easy account makes to overlook the fact has legitimate that it no role in capital sentencing proceeding. statement, The text reprinted of this length below, demonstrates that it is an arbitrary factor sentencing decision: 3-year-old
My daughter Carlita has suffered both emo- tional and psychological stress as a result of this crime I have had to take her to a psychiatrist. child Carlita and Carlton were since extremely close the time of home, her birth. he spend Whenever would he his Carlita, time taking her, helping care her and teaching her the right things in life. death,
Since his Carlita has been extremely confused. asks She me doesn’t “why my daddy back”, come “who is going my daddy my daddy now that is gone”. Even *63 mornings school, some when I take her to she say will to when me she sees sitting her father’s car in “I yard the my want to daddy come back and drive his car”. What I can say my 3-year-old child asking questions, these when I my heart want the same thing! night At nightmares, Carlita has waking up screaming crying daddy. for her IWhen took her to the child psychiatrist, doctor the told me that Carlita’s and Carlton’s relation- ship was more like mother-daughter relationship, be- cause of their closeness. So Carlita’s loss was ever greater because of relationship. this Since she lost her
father, of her and has sight, is afraid to let me out she me expressed fear that she will lose too. the might I am effects this crime upset also about the very felt, I on Because of the stress have unborn child. my had I have my considerably, was elevated pressure blood at sleep difficulty finding any a loss of and have appetite condi- my concerned about night. physician very My tion, might prematurely. the be born fearing baby that police I or a Every police and see a time Carlita office[r] died. car, it he is constant reminder of Carlton how sum, impact little the I find information victim relevant, is by statement Fletcher’s widow that submitted consti- from a and that does not standpoint, constitutional stated, and intend- tute an factor. without arbitrary Simply it is family, to minimize the of the victim’s ing suffering that daughter decision penalty irrelevant to the death for the treatment undergoes psychiatric a murder victim If emotional caused the offense. that were injury case, would be capital sentencing proceeding factors in the suscep- left survivors and the any the victim minor whether member particular family of emotional trauma of a tibility nor eighth Surely, neither the amendment murder. factors Supreme of the Court would sanction decisions case. penalty in a death such these the issue of whether inexplicably The Court avoids is family had his impact Minh’s murder on evidence imposed sentence to be to a determination of the relevant Fletcher. murdering his upon conviction appellant provide guidance urgency conceded Given Court’s retrial, it does not bewildering why lower court on it is issue. there is no indication this Because particular reach state- again impact not the victim the State will use that retrial, the Court appellant’s of Minh’s mother ment its broad-ranging dicta will hoping mistaken “[avoid] earnestly seeks to avoid. appeals” it so burden § its outset, I note terms bars At the mother by Minh’s statement submitted victim *64 769 sentencing capital proceeding. Lodowski’s Lodowski was principal degree convicted as a in the first in the first Fletcher, degree murder of Officer and as a in the principal in degree degree second the first murder of Minh. a trial, confederate, Elfadl, separate Lodowski’s Kamel was principal degree convicted as a in the first in the first Minh.7 in degree repeating murder of Without detail why class of felonies for only impact which a victim state § ment is authorized under felon when the causes the victim’s death is limited to first murders degree committed § by in the first it is principals degree, obvious that authorize the may impact victim statement submitted by § Mrs. in any Fletcher. Because does not sense autho rize the use of victim impact involving statements cases a first murder degree by principal committed the second degree, the victim impact statement submitted Minh’s by mother in capital sentencing proceeding is inad Lodowski’s had Manifestly, separate missible. Lodowski been tried Minh, trial for the murder of impact victim statement by submitted Minh’s mother would not be allowed into § evidence under 124. That Lodowski tried for the was murders of Fletcher and Minh in single proceeding both does reasoning not alter this one whit.
Assuming arguendo this statement is admissible in capital Lodowski’s I sentencing proceeding, am satisfied portions arbitrary this statement constitute an fac- §27, 414(e)(1) tor under Art. eighth and violate the fourteenth amendments.
Several passages impact the victim statement sub- mitted Minh’s mother injected passion prejudice into instance, sentencing process. For in describing the (Tue Phamdo), of the crime her upon husband Minh’s mother wrote:
Tue used to
Minh
rely on
as a second dad for
family.
Minh
his
assistant. Tue can’t eat nor can he
sleep
Special
Elfadl’s conviction was later
Ap-
7.
reversed
the Court of
State,
(1985).
peals.
Md.App.
See
We were believed in a from violence finally peaceful country, away settle eyes and children’s shone with persecution. Our [sic] (Minh after he country love for this new died two weeks gone that Minh is citizenship). his Now obtained U.S. family lost our none of us talked at the dinner table. We time, happiness. we lost our sharing
i[e sjc s[t s}c [*] [*] all of our everything. put relied on Minh on We We himself to proved in Minh. Minh turn hope well-being son. He contributed a lot to worthy Minh have lost family. of our Without we happiness unit, such as house- sharing we lost our time family mowing grass weeding garden. hold chores or Minh our is family a close knit Without family. We are complete. not describe, in simple statement on to impact goes
The victim terms, upon the effect of the crime descriptive but however, has no Again, this evidence family members. Although not indicate whether a victim the Court does 8. by the Division of Parole and be on a form furnished statement must Probation, styled important a statement it is to realize that family adds more captioned whim of the victim or the victim’s at the Here, sentencing process. in the prejudice and arbitrariness headings topic contained such submitted Minh’s mother statement Happy Days" This Crime Affect Us.” and "How Does “Our Past Moreover, photograph his of Minh and the statement included family. capital sentencing proceeding. role in a The legitimate particular crime has on a familial relation- impact a violent imposition penalty. is to the of the death ship not relevant reason, me, To it seems to is obvious. allow evidence sentencing proceeding injects into a genre capital of this nothing to do the defendant’s level of factors have being in the offense for he is sentenced. culpability which it, put family As one court “the fact that a victim’s recently no irredeemably bereaved can be attributable to act of other his will of the defendant than commission of homicide in the first has no relation- place. Such bereavement ... ship proper purposes sentencing a criminal Levitt, 500, 517, People Cal.App.3d case.” *66 (1984). Cal.Rptr.
The statement also contains other information that should have sentencing been excluded court. This informa- tion deals experienced by with the emotional troubles vari- ous Minh’s family. members of suffering
We have been of this incessantly because (on side) grandmother crime. Minh’s his dad’s is 74 years old and is living wept very with us. She and fainted often. She that when she her soul passed away beli[e]ves would wander her first is not on aimlessly grandson for earth to her. other worship Any grandson who would take duty worshipping over ancestor would not be Minh, table, as effective as the first born. At the dinner favorite, each time she a dish Minh’s it saw which was reminded her of his so she out and had crying broke migraine her All headaches and lost voice. of us couldn’t eat. all lost weight pale. We and became Tan, brother,
Ho Minh’s six old started to years [sic] wet his and up night bed woke the middle of the fears; He crying. shivering with he held me tightly “Why guys stronger police, asked are bad than the mommy?”
Tuan and Nam younger have become [Minh’s brothers] They They quit ta[l]king withdrawn. isolate themselves. and playing they normally They do. sit and stare at have registering anything. They for hours without
books themselves, stopped have they us telling about stopped Math, History questions other about asking each corner of sits at a Nam and Tuan each now Science. [sic] house, motionless. murder had Minh’s mother wrote Finally, her: upon only the most. I did not lose mother I suffer
As Minh’s arm. right friend who was my also lost a a son but I’ve I feel exhausted all headaches. developed severe I’ve I places. in public I control tears even my time. can’t My can’t whole type anymore. can’t concentrate drop things constantly. fear and I shakes with body often are there I that some evil men dread frightened. I’m so Noises are other sons. my for me and to wait heart. How pain my send head and amplified my I’m so can I do? other sons? What protect my can I day I missed a I’m confused. had never so frightened. the Red Cross first four during my years of work the last two call in sick five times I had to but [in] make it attacks that anxiety had constant months. I’ve I’m so morning. in the me out of bed get hard for lost faith teach children. I’ve my confused on how to compas- industrious and taught I had Minh people. passing day Each encountered disaster. yet sionate we *67 most lost; having lost our for us. We are big struggle in life. don’t commu- goal lost our We son we have loved Each one family anymore. in the nicate each other feel drained out. alone. We silently us suffers Minh, have they one but person, not killed They just have six, is to mere wish family killed a whose successfully simply peacefully. live analyze effort to these make an does the Court
Nowhere understanda- is to some extent statements. This omission to avoid course, permits it the Court ble, of because the Consti- these statements with squaring task of imposing omission, reasoning suffers the Court’s this Despite tution. infirmities. other fundamental yet from
773 B. case,
In a 1974 this Court stated that “the sentence fashioned, should be to the of the sentencing best judge’s ability, and circumstances surrounding facts ” crime and the individual then being sentenced. Henry State, v. 131, 150, 273 Md. 293, (1974) 328 A.2d 304 (empha- supplied). sis upon statement, Based this appellant argues that victim impact evidence does not relate to either of and, those result, matters as a is inadmissible. The Court rejects argument this because “there is a reasonable nexus between the impact of the offense upon the victim or the victim’s family the facts and circumstances surround- ing the crime especially as to the gravity or aggravating quality of the offense.” The reasoning Court’s is uncon- vincing. view, In my the Court tortures its earlier decisions and, more important, ignores controlling Supreme Court precedents.
The Court fails to acknowledge that
Henry
is a
non-capi-
tal case. Given this
distinction,
less than subtle
it is diffi-
cult
to understand how the Court can so easily apply
non-capital sentencing guidelines to capital sentencing pro-
ceedings. The more appropriate analytical approach is
found in a host of Supreme Court
dealing
decisions
with the
death penalty. See, e.g.,
Ramos,
v.
supra, 463
California
at-,
U.S.
3452,
774 in a omitted). contained Information citation
supplied; limits these strays beyond that impact statement victim amendments. and fourteenth eighth violates that the victim case, it is clear to me of this the facts On “the character and not limited to statements are impact circumstances offender and the individual record of the of the Manifestly, survivors offense.” particular concerning relevant facts any cannot relate murder victims survivors of the murders because the circumstances Furthermore, time of the crime. at the present were not of the any indicate that members does not the record appel with the acquainted personally families were victims’ this commission of prior to the and his confederate lant 439, 454, Ill.Dec. Ramirez, 98 Ill.2d v. People crime. See “circum (1983). To construe N.E.2d type encompass offense” to particular of a stances statements impact in these victim information contained Rather, the breaking point. to the phrase to stretch cir specific to the phrase has limited this Court Supreme it committed crime, such as whether was cumstances commit it was felony whether capital in the course of v. Gregg officer. officer or See peace judicial upon ted 2936, 49 197, 96 at at S.Ct. U.S. supra, Georgia, JJ.). Stevens, J., (Stewart, by Powell & joined at 888 L.Ed.2d into evidence admitting erred in the court Consequently, that were statements of the victim portions those matters. limited to these not su- Georgia, decisions v. Gregg Court’s Supreme lend Texas, support do not supra, v. and Jurek
pra, objected the appellant In reasoning. Gregg, Court’s at presen- allowed argument of evidence scope wide Stewart argument, this Justice rejecting hearings. tence and the introduced long evidence observed “[s]o hearing preju- do not presentence made at the arguments restrictions. impose not to preferable it is defendant, dice informa- as much for the to have jury it desirable thinkWe sentencing it makes the when possible it as tion before 203-04, 96 U.S. Georgia, supra, Gregg decision.”
775
2939,
S.Ct. at
49
(emphasis
L.Ed.2d at 891-92
supplied); see
Texas, supra,
Jurek v.
276,
The Court relies upon a 1977 decision Supreme Court of Alaska in support of position its impact “the of the crime on the victim is a relevant circumstance sur- rounding the commission of the offense and thus can prop- erly be included in presentence report.” Sandvik v. State, (Alaska 564 P.2d 1977) (footnote omitted). I fail to see the relevance of this case insofar as Alaska has never capital had a punishment statute since its admission into the Union in 1959.
It also bears mentioning that the trial court erred in admitting that portion of the impact victim statement sub- mitted Minh’s mother that recommended the court to “justify Minh’s death with a harsh Section sentence^]” 413(c)(iv) of Article 27 states clear language that “any recommendation as to sentence contained in [presen- (which tence investigation report turn contains the victim impact statement)] is not admissible” in a capital sentenc- ing proceeding. The introduction of this kind of material in disregard blatant of the death penalty statute underscores my contention that the court sentencing should meticulous- ly examine victim impact statements. Material that is irrel- evant to the capital sentencing decision should be redacted from the statement. Given the guidance by Supreme Court, this should not be an imposing task.
Finally, jurisdictions other have statutorily recognized, specifically inferentially, that victim impact evidence has no legitimate purpose in capital sentencing proceeding. § See, e.g., (West Conn.Gen.Stat.Ann. 54-91a Supp.Pamph- 1983) investigation required not (presentence let 1962 to § (West cases); Supp. tit. Okla.Stat.Ann. capital when the death sentence except 1984-1985) (in all felonies presentence investiga imposed, is the court shall order statement of the victim con voluntary tion to include the § (Law.Co offense); Ann. S.C.Code 16-3-1550 cerning the all crimes (authorizing victim statement for op.1985) death penalty crime for which the except any sought).9
IV the victim person The that other than suggests Court at the sentenc- presiding judge discretion of the may, the trial, testify open regarding of court ing stage of his the offense victim and members impact upon of vehemently disagree. I family.
A.
construc-
statutory
well-settled rules
By disregarding
out of
tion,
proposition
fashions the above
whole
the Court
that
has stated on innumerable occasions
cloth. This Court
obscurity
language,
in the statutory
ambiguity
absent
to look elsewhere to ascertain the
usually
is
no need
there
See,
Oliver,
State v.
e.g.,
Assembly.
intent of the General
State,
v.
Sibert
592,
242,
(1985);
599, 490 A.2d
245
Md.
302
Board
141, 153,
483,
(1984);
482 A.2d
489
301 Md.
474,
466,
v.
300 Md.
479
Optometry
Spitz,
Examiners
Hackley,
300
City
Baltimore
363,
(1984);
A.2d
367
Truck
283,
1174,
(1984);
Ryder
277,
477 A.2d
1177
Md.
850,
Lines,
528, 535, 463 A.2d
855
Kennedy,
Inc. v.
296 Md.
provides
may
that a victim
submit
written
Massachusetts
law
9.
cases, excluding capital
felony
cases.
statement
in all
victim
279,
(Michie/Law.Co-op.Supp.1985).
ch.
4B§
See Mass.Ann.Laws
however,
Supreme
year,
Judicial Court of Massachusetts
last
Late
jurisdiction’s
penalty
on the basis that
death
statute
struck down that
rights against self-
impermissibly
state constitutional
burdened the
it
right
jury
trial. Commonwealth v. Colon-
and the
incrimination
Cruz,
150,
(1984).
Mass.
777 (1983); Comm’n, 2, 6, Vallario v. State Roads 290 Md. 1384, (1981); A.2d 1385-86 Harden v. Mass Transit Ad- min., 399, 406, 817, 277 Md. (1976). 354 A.2d applying this rule to the case judice, sub it evident that mightily legislative Court strains to reach the relevant history. matter,
As concedes, must, an initial the Court as it § 124 of Art. not specifically does authorize live testimo- ny. Court further concedes that the re- presentence ports provided for that section are “[Unquestionably” In light be written. of these concessions the unambig- § I language 124, uous and clear cannot understand why the Court rushes headfirst to analyze legislative history of that section. I Before had it today, thought settled that precluded Court is from resorting extrinsic aids to analyze legislative particular intent of a statute when is unambiguous Indeed, statute “[g]oing and clear. plain language behind the of a statute in search of a [legislative] possibly contrary step intent is ‘a to be taken cautiously’ even under the best circumstances.” American Patterson, 63, 75, Tobacco Co. v. 456 U.S. 102 S.Ct. (1982) 71 L.Ed.2d (quoting Piper v. Chris- Indus., Inc., 1, 26, 926, 941, 430 U.S. 97 S.Ct. *71 Craft 124, (1977)). L.Ed.2d By sweeping aside that nettle- rule, some the Court itself to engage allows a lengthy § and unnecessary legislative review the 124. history of path Because the misguided Court takes is and the inferences questionable, it draws are I ignore cannot gratuitous Court’s discussion.
The General Assembly rejected, has on at least eight occasions, bills that would have authorized victim allocution § sentencing. 253, Sess., at (1985); See S. 388th H.B. § 1472, Sess., 388th (1985); 793, (1984); S. 387th Sess. 1512, (1984); H.B. 387th 523, (1983); Sess. S. 386th Sess. (1983); H.B. 386th (1983); Sess. H.B. 386th Sess. see (1983) also S. 386th Sess. (provision authorizing victim allocution deleted from prior bill to its passage and enact- ment). In the rejections, face of these the Court speculates inwas legislature thought testimony any
that that live “the no legislation expressly providing and that event admissible however, conclusion, A is contrary for it necessary.” ten legislature nearly to introduce For a equally plausible. which no topic the same year period bills a three over to common necessary contrary is is legislation presumably Indeed, legislators have a considerable number of sense. instance, in the 1985 these bills. For seen fit to introduce spon- fifty-eight delegates Assembly, session of the General (H.B. 1472), while ten sena- allocution bill sored the victim (S. 253). Both Senate bill sponsored corresponding tors failed. § 124 does my view that not support
Additional reasons First, have states that testimony. authorize live victim done so specifically victim allocution have authorized in the leading statutory treatise area their statutes. The of other statutes states states that construction “[similar special attention deserving of extrinsic aid comprise type Statutes 2A interpretation.” Singer, N. in the process § (Sands 52.01, at 4th ed. Construction Statutory impact evi- 1984). Maryland’s victim cursory glance A of many it is similar to that dence discloses that statute states, however, Maryland has Unlike other other states. allocution. authorizing victim specific provision not added drawn, therefore, is that to conclusion be reasonable live victim testimony did not intend for legislature admitted. repre- of a
Second, testimony from the gathers the Court hearing Association at Attorney’s of the State’s sentative testimony live of the victim bills on one testimony on this causes. Based juvenile admissible enact failure to Assembly’s reasons that General Court practice evidences its reluctance this abrogate legislation I appalled am judges. discretion exercised limit the juvenile causes with blithely equate can so the Court *72 causes, sentencing Juvenile proceedings. capital aware, carefully subject is are not surely Court capital applicable constitutional constraints delineated 779 sentencing Moreover, proceedings. does Court not point any Maryland appellate decision or rule of court form sanctioning the use this testimony juvenile causes. The reasoning, appellant’s, suspect. Court’s not
Third,
cases,
reviewing
after
line
the Court concludes
“it is patent
that
that over the
this
years
recog-
Court has
accepted
nized and
equivocation
without
or question that a
discretion,
in his
sentencing judge,
may obtain information
imposition
relevant to the
in open
sentence
court through
York,
See Williams v. New
Logan
testimony.”
supra;
live
State,
v.
460,
(1981) (4-3
289 Md.
425 A.2d
decision);
632
State,
Johnson v.
536,
Bar-
(1975);
274 Md.
The Court relies upon Bartholomey v.
supra, the “broad discretion of
sentencing
judge.” The Court
us,
not
however,
does
tell
Bartholomey
Court
made this statement in the context of a
Bartho-
case.
rape
State,
v.
lomey
supra,
L.Ed.2d
1764-65,
100 S.Ct. at
Woodson 406;
L.Ed.2d
*73
Carolina,
2990-
supra,
B. is testimony that victim agree I were to live Even if (which I do sentencing proceedings in capital authorized it case indicates that not), testimony this a review infirmities as from the same constitutional suffers view, of the testimo- my none statements. victim as to is relevant Minh’s mother or Fletcher’s widow ny penalty. should death impose the sentencer whether Rather, arbitrary factor be- testimony constituted this sentencing passion process it with cause saturated con- testimony live makes this A review the prejudice. clusion obvious. Fletcher’s sentencing proceeding, widow appellant’s
At Fletcher and relationship existed between that explained daughter: his young so born, high temperature, I
Well, she had a when was feeding day hospital every there at the [my was husband] her, home, I he took off with and then after came her, they were psychiatrist, When I took her too. more his was like close, the said death psychiatrist so mother, father, instead because death of relationship they had. type was the asks has to him. She happened what She still wonders her airplane go in the see father. now, get me can she he can’t come back. When why understand She doesn’t her moved, said she thinks father the psychiatrist we she knows though house. come to the new Even going to dead, one he will be back. She hopes day he’s she still there, being she his not nightmares still has about he was shot she knows problems guns, has with because gun. awith her to explain on to what prompted then
Mrs. Fletcher went daughter: for her treatment psychiatric seek Well, waking nights she started at up screaming and crying, saying talking daddy, she’s to her and then she having problems guns. started She’d take the noz- zle off the hose and point people, it she saying them, going to shoot and that’s why we started taking her to the psychiatrist.
The prosecutor Fletcher, then elicited testimony from Mrs. *74 pregnant, who then concerning was the physical impact of crime upon her: The stress prolonged has the baby’s growth. I had two sonograms. The first one the doctor said baby the . was too to small be born the normal time. He said he can’t tell whether it really mix-up was the with dates or the stress, he but said of them both have probably played a it, part because I shouldn’t be going this long. This testimony, deserving is, of highly as it sympathy has no relevance any capital sentencing proceeding. The emotional problems experienced by a three-year-old girl as the result of her father’s violent physical death and the problems encountered victim’s widow the late of stages her pregnancy are arbitrary factors upon which to impose the death penalty. Testimony such as this does not guide and channel the discretion; sentencer’s instead, it unleashes the sentencer’s discretion on matters not bearing upon the defendant or the circumstances of the offense. passion and prejudice that results from this of type testimony does require explanation. not
Equally unconstitutional is the from testimony Mrs. regarding Fletcher the overall upon the murder her and her family. Through this cathartic Mrs. testimony Fletcher recommended appellant be sentenced to death: going through the trial and hearing differ-
[AJfter testimonies, ent it’s still kind of hard for me get to over way he died. I heard—one the witnesses said she up car, went off, and she saw his head I guess and that I still lay awake at night thinking about how could somebody so heartless as to shoot and then somebody, go back and shoot him again they after shot his head off. going through all this happening, I
Then think about that, like something you I after do this, figured, you and street; you’re you out on the get to 20 and back years, somebody kill is it? You can know, system kind of what personal- I again? guess, walk the streets you and then death, put should be anyone, you kill ly, you I feel, if right go out and kill give you because that doesn’t again. the streets somebody and then walk shot, Then, policeman’s, I who was to another went killed officer who was wake, and of the sons one there, telling and he ’69, his son was was back in ’68 or died, I his father me old when years that he was “Well, He says, did he deal it. him how asking with it.” He “I still says, don’t never deal you really rung they came to door think about when father, something I night. my knew that time doorbell him, comes to nobody your happened had because go “I to all morning.” says, in the He early house that said, he policemen,” the dead ceremonies for these *75 I found thing really helped me was when only “The died,” father had my who killed person out that he of natural parole out on and died because he was back, it said, father bring my “It didn’t but causes. He walking the streets.” That’s let me that he wasn’t know him bring I Carlton. It won’t the same about way feel death, put to back, [appellant he won’t kill but is] if you let know policeman, people and other another it, away out get get policeman can’t kill a [Emphasis supplied.] the streets. and walk years report pre- investigation a presentence because Manifestly, recommen- cannot contain penalty any in a death case pared § 413(c)(iv), sentenc- sentence, any to see Art. dation sentencing at the made witness recommendation ing Further- is likewise inadmissible. capital of a case phase § 413(c)(v)because more, testimony contravenes the above than sentence, nothing does more to is not relevant it authority. sentencing passion prejudice incite § add, might I 414(e)(1). The prosecutor, Art. See goaded Mrs. her Fletcher into discussion concerning daughter’s appearance reaction of the victim the time of the wake:
My father took her to the up casket and held her so up him, she could see and the first thing she wanted to know is, “Why does my daddy have that scar on his neck?” ‘cause she see could where had they stitched his neck together, back and he had the scar. That’s the first thing she noticed.
The sole purpose this statement was to arouse the passion of the sentencer. Consequently, this testimony was inadmissible.
In response prosecutor’s question of Mrs. whether Fletcher wanted relate anything else concerning death, of her husband’s she stated: just
Not I really, my parents know what gone have through, parents what his gone have through. aunt My very was close to him. She’s had two strokes since it happened. mother My has been hospital back four or five times happened, since it because she so worried about me and it what effect would have on me Right and the I baby. guess now I still can’t you believe can shoot someone and plead then I insanity. just can’t believe that. Court, course, cannot explain testimony how this
passes constitutional or muster. statutory
Although the testimony live of Minh’s mother is irrele- vant for the IIIB, reasons detailed in Section it is none- important theless note that her testimony, present in its form, in any would event be inadmissible at appellant’s *76 capital sentencing proceeding. It is to unnecessary quote length at her testimony of because much it mirrors that in the submitted, contained victim impact statement she important such as the role son an eldest has in ancestoral under the worshipping religion, Vietnamese grief the and of family, the and the problems bereavement emotional of statement, intensely passionate siblings. Minh’s an her emotions: expressed vividly Minh’s mother son, I I lost my lost a friend. only I did lost a but not to the time I have work, cry. Only I not future. At did children, cry, I not to try my of best my cook and in front in the time, subway early I on the stay when but other afternoon, I I the cry, cry, and in the morning my I in the I touch up, I and walk room. midnight, wake “Minh,” son clothes. I call wherever. book, my son I took Minh, kill me. wept my I for Minh. Please my wept for hand, cut please my cut my Please my Don’t kill son. back. my arm. son Give
[*] s¡< >¡c [*] [*] [*] to live. to me. He want son back give my Please consti- testimony, testimony this As Fletcher’s with Mrs. factor the death penalty decisional arbitrary an tutes eighth amendment and is barred process, therefore punishment. cruel and unusual against ban Y court evidence admitted Here, the victim death contributing imposition factor was a day first sentencer made clear penalty. going “I’m take the sentencing proceeding capital he so That did into consideration.” impact statement victim imposed he day actually his on the from comments clear sentencing appellant after Immediately the death sentence. death, court stated: n out the snuffed tragedy in a which participated [Y]ou and Minh Carlton Fletcher people, beautiful lives two father, son, a families deprived two Phamdo. You’ve husband, deprived and a brother grandson, conscientious, of a George’s County Prince citizens of industrious, hard officer, working police hard unlim- potential citizen whose working new American killings have and deliberate Reckless and wanton ited. *77 become frequent today’s all too I hope world. pray imposition that the of this sentence will deter some- one in the following footsteps, future from Mr. your Lodowski.
The Court notes that is clear from the record here “[i]t that the sentencing court did not impact the victim [consider aggravating evidence as an The transcript circumstance].” of the sentencing proceeding merely supports proposi- tion that the sentencer did not articulate as aggravating an impact circumstance the of the upon murders the victims’ indisputable families. But it is impact victim evidence in the played active role sentencer’s decision to impose Thus, death penalty. what are left with is we the fact that the sentencer considered the impact victim evidence but did not characterize it as an aggravating view, In my circumstance. this procedure comport fails to §27, with Art. 413.
Once the sentencing authority beyond finds a reasonable doubt the existence of one or aggravating more circum- stances, required it is any mitigating to consider whether circumstances exist upon preponderance based evidence. If the sentencer finds that one or mitigat- more ing exist, whether, circumstances it must determine aby evidence, preponderance the mitigating circumstanc- outweigh es the aggravating circumstances. If the sentenc- mitigating er finds that the circumstances do not outweigh circumstances, the aggravating the sentence shall death. be § ten aggravating 413(d), Of the circumstances listed in specifically provides impact none consideration victim § Moreover, 413(d) evidence. does not contain a “catch-all” to that mitigating similar set forth circumstances (§ 413(g)) permit sentencing subsection that would au- thority impact consider victim evidence. In the case sub the sentencer did not consider victim judice, mitigating as a For circumstance. obvious rea- evidence ever, if con- rarely, sons, impact evidence would victim Thus, the sentencer circumstance. mitigating sidered as aggra- as an considered that evidence must have necessarily *78 it into the formal entering circumstance without vating § 413 permit Nowhere does weighing process. statutory aggra- and weigh mitigating to the sentencing authority the evidence, at circumstances, then the victim vating of the death sentencing. imposition penalty time of sentencing did not with the comport in therefore this case §in 413. contained procedures
VI view, allowing members of only purpose my to vent capital sentencing proceeding family victim’s case, is to grief, as in this express and their passions their circmnstances established aggravating exacerbate arbitrary These demonstrations are the prosecution. for the defend- a frenzied environment and create capricious testimony that any expresses he challenge can ant. How harm, sorrow? The de- bereavement, or infant religious family pleads mute the victim’s must remain while fendant “pound its flesh.” to have a of heinous crimes seek I realize that the victims themselves process criminal assure justice voice I adequately punished, are guilty properly that the as it remains participation long find no fault with their the halls of justice But constitutional bounds. within vengeance cries for the forum which their should not be stand as great country courts of this be heard. The should executives, legisla- oppressive against tyrannical bulwarks uncontrolled, outraged Mary- We in tors, citizens. and even mur- wave the family never allow members land should and holler: the sentencer shirt before bloody der victim’s we sight If lose our mission accused!” we “Death bury of the defendant but also dig grave not only shall vengeful mire of our labor. justice