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Lovell v. State11/12/1997
9, 670, 566 A.2d 111, 116 (1989); Maryland Rule 4-231. During the one and one-half day sentencing proceeding Lovell sat at the defense trial table. He did not testify under oath and subject to cross-examination, but he did allocute prior to the arguments by the State and defense. For purposes of that allocution, the defense obtained the court's permission to have Lovell seated in the witness chair before the jury returned to the courtroom from a recess. At the conclusion of the allocution the court offered to send the jury out before Lovell moved back from the witness chair to the trial table. Defense counsel said there was no need to do so.
On its own initiative, but without objection from Lovell, the circuit court included in its instructions to the jury the statement that the wrist and ankle shackling was "the normal proceeding for anyone already convicted of charges of murder and facing a serious sentence." We do not believe that this instruction cures the error by causing the balance to tip sufficiently away from prejudice and in favor of the State interest in courtroom security to sustain the decision to shackle. It has been reported that in 1996 there were 3,061 inmates on death row in the United States. See NAACP/Legal Defense & Education Fund, Death Row, U.S.A. 1 (Winter 1996). When one considers that cases in which capital punishment has been imposed are intensively (and repetitively) litigated, the relative paucity of reported decisions reviewing a trial court's decision to shackle at a jury capital sentencing, see Part II.A, (supra) , suggests that shackling is not the norm.
In Bruce v. State, 318 Md. 706, 569 A.2d 1254 (1990), the murderer was not shackled at sentencing despite his having been convicted of five counts of murder committed in a drug-war, mass assassination perpetrated by the defendant and others. Id. at 711-13, 569 A.2d at 1257-58. The defendant was found to be a principal in the first degree as to two of the murders, and the jury imposed a death sentence for each of those murders. Id. at 712, 569 A.2d at 1257. On appeal Bruce complained about increased security measures that had been taken principally outside of the courtroom, but we said that these measures were not "an inherently prejudicial practice like shackling during trial, which can only be justified by compelling state interests in the specific case." Id. at 721, 569 A.2d at 1262.
More important is that the "curative" instruction embodies the error that underlies the decision to shackle in the first instance. The instruction reflects the notion that all convicted murderers who face the possibility of a jury-imposed capital sentence are appropriately shackled. That is not the individualized evaluation that is required by our cases. That individualized evaluation considers whether there is a State interest that justifies the prejudice to the person whom the State seeks to execute. If the prejudice effectively could be eliminated by instructing the jury not to consider the shackling as indicative of future dangerousness, the procedure in all of these cases would be simply to shackle and to instruct, without the need for a hearing.
III
Lovell contends that there was insufficient evidence to submit to the jury the aggravating circumstance set forth in Article 27, ยง 413(d)(3), which reads:
"The defendant committed the murder in furtherance of an escape or an attempt to escape from or evade the lawful custody, arrest, or detention of or by an officer or guard of a correctional institution or by a law enforcement officer[.]"
The argument focuses on the words, "custody, arrest, or detention." There is no evidence that Lovell was in custody whe
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