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Lovell v. State11/12/1997
ized shackling after hearing evidence that the murderer, Elledge, had stated, while incarcerated, that he intended to assault the courtroom bailiff because Elledge had nothing to lose. Id. at 1450. Further, Elledge had become proficient at karate while in jail. Id. A majority of the Eleventh Circuit panel concluded that Elledge should have been given an opportunity to rebut the information furnished to the state judge and that there was an absence of a showing that the shackling was necessary. Id. at 1451-52. The dissenting judge considered that the majority had adopted a per se rule. Id. at 1452 (Edmondson, J., dissenting). Under the dissenter's approach the trial judge had shackled the defendant "for specific, articulable reasons, in addition to the defendant's status as a felon convicted of a violent murder," and the trial judge had entered those reasons in the record. Id. at 1456-57 n.7. In the absence of a request for a hearing by the defendant, due process was satisfied in the dissenter's view. Id. We do not embrace the "per se" rule of the majority in Elledge. The position of the dissent, however, is very close to the Bowers, Hunt, and Whittlesey analysis.
Also similar to the Maryland approach is that of the Supreme Court of Utah in State v. Young, 853 P.2d 327 (Utah 1993). After concluding that "safety measures may include shackling a defendant in appropriate circumstances," id. at 350, the court stated:
"By holding that shackling at the penalty phase does not inherently violate the due process rights of a defendant, we do not hold that shackling is necessary or appropriate in all capital sentencing proceedings. The mere fact that a jury convicted a defendant of first degree murder is not a sufficient basis for a decision to shackle him during the penalty phase. The trial court should look at the particular facts of the case and the conduct of the proceedings and should balance the need for safety and security in the courtroom against the potential for prejudice."
Id. at 350-51. In Young, shackling was justified by the defendant's record of violence and uncontrollable temper. Id. at 351. When Young became angry at a photographer in an Indiana courtroom, four officers were needed to restrain him. Id. In addition, Young's own expert testified "that his temper was triggered when he perceived that he was being labeled retarded or insane," the type of testimony which was to be presented in the penalty phase of Young's trial. Id.
The rule in the United States Court of Appeals for the Fifth Circuit has been expressed as follows: "Simply put, a defendant must not be shackled before his jury unless the restraint is necessary to protect the safety of the trial participants or the sanctity of the trial itself." Marquez v. Collins, 11 F.3d 1241, 1244 (5th Cir.), cert. denied sub nom. Marquez v. Scott, 513 U.S. 881, 115 S. Ct. 215, 130 L. Ed. 2d 143 (1994). Marquez was an appeal from the denial by a federal district court of a writ of habeas corpus sought by a Texas prisoner who was under a death sentence. Id. at 1243. The Texas trial judge had ordered the defendant to be shackled hand and foot after hearing the following evidence:
"(i) Marquez pleaded guilty on January 11, 1984 to four separate indictments for burglary and an earlier theft in 1977; (ii) defendant fled police in an automobile and exchanged gunfire with the pursuing police while going the wrong way on a major thoroughfare at speeds up to 100 mph; (iii) as a juvenile Marquez was charged with 'robbery by assault, strongarm, ungovernable, unlawfully carrying a knife, paint sniffing and burglary of a nonhabitation'; (iv) he had that morning assaulted television cameramen in the hallway while wearing
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