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Lovell v. State11/12/1997
493 U.S. 920, 110 S. Ct. 285, 107 L. Ed. 2d 264 (1989); United States v. Osorio, 801 F. Supp. 966, 977-78 (D. Conn. 1992).
On the record before us the only persons who are excluded from jury service in Talbot County are those who choose not to register to vote, or who are disqualified from doing so. Those persons are not a "distinctive" or "cognizable" group. See Wilkins v. State, 270 Md. 62, 68-69, 310 A.2d 39, 42, aff'g 16 Md. App. 587, 300 A.2d 411 (1973), cert. denied, 415 U.S. 992, 94 S. Ct. 1592, 39 L. Ed. 2d 889 (1974).
FINDING OF GUILTY OF MURDER IN THE FIRST DEGREE, BASED UPON PLEA OF GUILTY, AFFIRMED. DEATH SENTENCE VACATED, AND CAUSE REMANDED TO THE CIRCUIT COURT FOR TALBOT COUNTY FOR A NEW SENTENCING PROCEEDING UNDER ยง 413 OF ARTICLE 27.
IN THE COURT OF APPEALS OF MARYLAND
Concurring opinion by Wilner, J. in which Chasanow, J. joins
Filed: November 12, 1997
I concur in the result reached by the majority. Lovell is entitled to a new sentencing hearing because the trial court failed to respond appropriately to the jury's question with respect to the mitigating factor of youthful age. Given Lovell's age (24) and the fact that, under our current law, "youthful age," for purposes of the death penalty, essentially starts at 18 rather than at birth, it was important that the court give some guidance to the jury, which obviously desired such guidance. I write separately to express my disagreement with and concern over the majority's view that the sentence would have to be vacated on the additional ground that the court did not make a proper individualized assessment of whether Lovell's shackling was necessary. I believe that the approach taken by the majority on that issue (1) is not required by our case law, and (2) is unnecessary and defies common sense in the context of a capital sentencing hearing.
We first examined this issue, at some length, in Bowers v. State, 306 Md. 120, 507 A.2d 1072, cert. denied, 479 U.S. 890, 107 S. Ct. 292, 93 L. Ed. 2d 265 (1986), which also arose from a death penalty sentencing hearing before a jury. Bowers had kidnapped, sexually assaulted, and murdered a woman. Upon his conviction for first degree premeditated murder, he was sentenced to death, but this Court vacated the sentence because the jury had failed to find a mitigating circumstance that the State conceded was established by the evidence. The shackling issue arose at the new sentencing hearing as the result of a memorandum from the sheriff's office to the courthouse security deputies, directing them to take appropriate steps to protect the defendant and other courtroom attendants and noting that "this may include leg cuffs at all times." The judge informed counsel of that memorandum as well as of his own awareness of "some difficulty" while Bowers was incarcerated. The nature of that "difficulty" was not then explained. Although noting that he might have reached a different conclusion, the judge felt that he ought not "to second guess the individuals charged with security where there has been some prior indication of difficulty involving the Defendant." Id. at 124, 507 A.2d at 1074. The court concluded that the sheriff's office was "not being unreasonable or arbitrary in their decision in this instance" and that the court should "not countermand their direction to the court security people." Id.
In his sentencing report, filed after the jury returned its verdict imposing the death sentence, the judge recounted Bowers' criminal history and prior institutional experiences. There were no prior crimes of violence. There were incidents of assaults and disturbances while he was incarcerated, although none involved an atte
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