Bowers v. State

Decision Date01 September 1984
Docket NumberNo. 122,122
Citation507 A.2d 1072,306 Md. 120
PartiesMarselle Jerome BOWERS v. STATE of Maryland. ,
CourtMaryland Court of Appeals

Victoria S. Keating and George E. Burns, Jr., Asst. Public Defenders (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Valerie V. Cloutier, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.


SMITH, Judge.

Marselle Jerome Bowers was convicted by a Charles County jury of murder in the first degree and sentenced to death. In Bowers v. State, 298 Md. 115, 468 A.2d 101 (1983), we affirmed the conviction but vacated the death sentence because the jury failed to find a mitigating factor which the State at trial had conceded the evidence showed. Accordingly, we remanded the case for a new sentencing proceeding.

A Charles County jury has again sentenced Bowers to death. The case reaches us pursuant to the provisions of Maryland Code (1957, 1982 Repl.Vol.) Art. 27, § 414 stating that whenever the death penalty is imposed we shall review the sentence. We shall affirm.

The facts are set forth in our earlier opinion. We shall relate only such facts here as are necessary to an understanding of the issues presented. We consider the issues seriatim.

1. Leg-irons

Over the objection of counsel, Bowers was in leg-irons during the trial. The issue of leg-irons was discussed in chambers. The trial judge, the same one who presided at the earlier trial, said in ruling upon the issue:

"This matter was discussed in chambers and we are talking about the concern of defense counsel that Mr. Bowers is in leg-cuffs, which I suppose some would describe them as leg-irons, and someone else would describe them as leg-cuffs.

"I have received from the Sheriff's Office a memorandum concerning this, and what they are saying is that due to the serious nature of the charges, and Mr. Bowers' prior background, and specifically as it relates to this case he is considered by them an escape risk. They have instructed the court security personnel that they are to properly protect the Defendant and courtroom attendants, and they indicate that they feel that leg-cuffs should be required at all times, and that two officers be with the Defendant during transportation and inside the courtroom.

"I just point out that the Sheriff's Office is charged with courtroom security, and it is indicated by the counsel representing Mr. Bowers that he has been cooperative and in no way committed any act which would indicate that he presents a security risk.

"However, I am aware having been involved in the prior trial that there was some difficulty that occurred when he was incarcerated in Somerset County which resulted in his being transferred to the Department of Corrections, and that after he was confined at the Department of Corrections some difficulty occurred at that institution. This was while he was awaiting trial for the offense for which he has been convicted.

"I conclude that there is some basis for the concern of the Sheriff's Office, and even though maybe given the same set of facts and circumstances I might reach a different conclusion, nevertheless these individuals are charged with courtroom security, and I am not saying I would have made a different decision on the issue, but I am just saying it may be that given all the facts and circumstances I might have made a different decision.

"Nevertheless, I don't feel that I ought to second guess the individuals charged with security where there has been some prior indication of difficulty involving the Defendant.

"I also point out that if something does occur which would cause some action to be taken during the course of the hearing I think that would be much more prejudicial to Mr. Bowers than what has taken place in the beginning.

"I conclude, based on everything that has been presented to me, that the Sheriff's Office is not being unreasonable or arbitrary in their decision in this instance, and for that reason I feel that I should not countermand their direction to the court security people. So that motion is denied."

The memorandum to which the trial judge referred was to court security personnel relative to this trial from the individual in the Sheriff's Department who commanded the "Court/Civil Division." It read:

"Cpl. E.K. Thompson has been temporarily assigned to Court Security Section for duration of Bowers' trial.

"Due to serious nature of charges against Bowers and his prior background, he is to be considered an escape risk, and, you are directed to take steps to properly protect the Defendant and courtroom attendants. This may include leg cuffs at all times; two officers with Defendant during transportation and inside Courtroom; and any other means you may deem necessary."

The trial judge in his sentencing report listed the prior record of Bowers, beginning with a juvenile conviction in 1966 on an assault and battery charge with a knife. It came down to 1976. There were no crimes of violence listed as that term is defined in Code (1957, 1982 Repl.Vol.) Art. 27, § 413(g)(1). (The trial judge, of course, would have been aware, as we stated in Bowers, 298 Md. at 140, 468 A.2d at 114, that as an outgrowth of the incident now before the Court Bowers was convicted of kidnapping in the Circuit Court for Talbot County on April 7, 1982. This is defined as a crime of violence. That case was removed from Worcester County to Talbot County for trial. Bowers was sentenced to a term of thirty years from August 4, 1981.) Under institutional history the following was reported:

                          "Institutional History
                9/26/75   Interfering with         24 hour
                          Fire Drill               lock-up
                12/10/75  Refused to obey
                          orders Creating
                1/9/76    Creating                 15 days
                          Disturbance              loss of
                          Disrespectful to        privileges
                          Loud and Abusive
                5/27/76   Assault on two          (see prior
                          prison guards            record)

"Mr. Bowers has been considered a 'management problem' throughout his institutional career. During his confinement in connection with the instant case, he has been involved in one disturbance in the jail which involved several other prisoners and required the assistance of the Town Police Department and the Maryland State Police to bring under control. He has also battered a fellow inmate and a jail employee. As a result of these acts, Mr. Bowers was transferred from the Somerset County jail to the custody of the Commissioner of Corrections and placed in segregation (solitary confinement)."

The trial judge further reported relative to "Other Significant Data About Defendant":

"It is significant that a report by his former probation officer, dated September 15, 1981, states that Mr. Bowers was a problem throughout his probation. The report described him as 'an extremely sophisticated, street-wise individual who is also a very clever manipulator.'

"He has also displayed continuing dissatisfaction with all attorneys assigned to represent him in the instant case. He has refused to cooperate with counsel, has discharged counsel, and has filed voluminous pleadings pro se, with his attorney as 'stand-by'. 1 His maneuverings caused the trial to be delayed several times."

At Bowers' request the jury was asked on voir dire whether "there [was] anyone on the panel who because [Bowers was in leg-cuffs] could not render a fair and impartial verdict based on the evidence presented at the hearing." There was no positive response. Bowers personally later requested that inquiry be made as to whether "from [his] appearance in the leg-shackles, if any of the jurors would draw any inferences as to [his] character." Inquiry was made with the judge's specifying:

"We are referring to his reputation for being truthful, as well as his character as to peace and good order other than the matter for which he has been convicted."

Only one juror said he would draw such inferences. He was excused.

Bowers calls attention to the language of the Court in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970):

"Trying a defendant for a crime while he sits bound and gagged before the judge and jury would to an extent comply with that part of the Sixth Amendment's purposes that accords the defendant an opportunity to confront the witnesses at the trial. But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury's feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold." 397 U.S. at 344, 90 S.Ct. at 1061, 25 L.Ed.2d at 359.

Allen must be placed in the context that the case concerned a disruptive defendant and the Court's comment involved gagging in addition to shackling. Here we have only shackles. Among other things, the defendant had told the trial judge, after a warning:

" 'There's not going to be no trial, either. I'm going to sit here and you're going to talk and you can bring your shackles out and straight jacket and put them on me and tape my mouth, but it will do no good because there's not going to be no trial.' " 397 U.S. at 340, 90 S.Ct. at 1059, 25 L.Ed.2d at 357.

In that case Allen was removed from the courtroom. According to the Court, "the Court of Appeals concluded that a trial judge could never expel a defendant from his own trial and that the judge's ultimate remedy when faced with an obstreperous defendant like Allen who determines to make his trial impossible is to bind and...

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