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Lovell v. State11/12/1997
ore than two hours was conducted outside the presence of the jury; Lovell had an opportunity during that hearing to rebut or comment on all of the factors considered by the judge; and, although neither a voir dire question nor an instruction was requested by Lovell, the court, on its own initiative, informed the jury that the shackling was "the normal procedure for anyone already convicted of murder and facing a serious sentence" and that the jury was "to draw no conclusions regarding future dangerousness or any other conclusions based upon these normal security measures." The majority's conclusion that the instruction was inadequate and was inconsistent with the requirement of an "individualized assessment" is difficult to understand, as it followed precisely what we said in Hunt ought to be done.
We last addressed this issue, albeit in dicta, in Whittlesey v. State, 340 Md. 30, 665 A.2d 223 (1995). When Whittlesey appeared in court for the sentencing hearing, he was in leg irons. He asked that they be removed and that, if the court decided to permit restraints, the court instruct the jury that he was shackled pursuant to Division of Correction standard policy. The court held a hearing, during which it was informed that the Division's standard policy was, indeed, to put "some form of restraint" on defendants during capital sentencing hearings, and that the Division considered Whittlesey as having "escape risk history." Though given an opportunity, Whittlesey did not refute that allegation. The court also noted a recent incident "in which a respondent was not shackled and took advantage of that situation." Id. at 84, 665 A.2d at 249. In the end, it required Whittlesey to wear leg irons.
Addressing Whittlesey's complaint, we confirmed what we had said in Bowers, that
"the trial judge has broad discretion in maintaining courtroom security," but that, "in exercising this discretion, the decision as to whether an accused should wear leg cuffs or shackles must be made by the judge personally, and may not be delegated to courtroom security personnel." Id., 665 A.2d at 249-50. Again rejecting the rationale expressed by the Eleventh Circuit Court in Elledge, supra, 823 F.2d 1439, we concluded that, while " judge's discretion over the use of restraints during the guilt-or-innocence phase of a trial is limited by the Due Process Clause, because such restraints might derogate the presumption of innocence in the eyes of the jury," in a capital sentencing proceeding "unlike the trial on guilt or innocence, the presumption of innocence does not apply." Id. at 85, 665 A.2d at 250 (footnote omitted). We did confirm, however, that, even in a capital sentencing proceeding, the defendant is entitled to "an individualized evaluation of both the need for shackling and the potential prejudice therefrom," and recounted, from Hunt, the procedures that should be followed in making that evaluation. Id. It was not clear from the record in Whittlesey whether the judge ordered the restraints because of the general policy of the Division of Correction, because of the unrebutted classification of Whittlesey as an escape risk, or because of the earlier incident involving another defendant, and we therefore urged the judge, on remand, "to follow the directives set out in Hunt and Bowers before employing any extraordinary security measure and to articulate the reasons underlying any such decision." Id. at 86, 665 A.2d at 250.
In my view, Judge Horne followed in full measure the procedures set forth in Bowers and Hunt. He held a hearing outside the presence of the jury, he allowed Lovell to state his position, he articulated his reasons for requiring the shackling, he made unmistakably clear that he was
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