Bowers v. State
Decision Date | 01 September 1984 |
Docket Number | No. 122,122 |
Citation | 507 A.2d 1072,306 Md. 120 |
Parties | Marselle Jerome BOWERS v. STATE of Maryland. , |
Court | Maryland 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.
Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.
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.
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:
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:
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). Under institutional history the following was reported:
The trial judge further reported relative to "Other Significant Data About Defendant":
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):
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:
" " 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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