Lodowski v. State

• Citation: 302 Md. 691,490 A.2d 1228
• Decision Date: 23 April 1985
• Docket Number: No. 1,No. 154,S,154,1
• Parties: Kenneth James LODOWSKI v. STATE of Maryland. ept. Term 1983.ept. Term 1984.
• Court: Court of Appeals of Maryland

Page 691

302 Md. 691

490 A.2d 1228

Kenneth James LODOWSKI v. STATE of Maryland.

No. 154, Sept. Term 1983.

No. 1, Sept. Term 1984.

Court of Appeals of Maryland.

April 23, 1985.

Gary W. Christopher, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, George E. Burns, Jr. and Sherrie R. Berger, Asst. Public Defenders and William C. Brennan, Jr., and Richard H. Sothoron, Jr., Baltimore, of counsel, on brief), for appellant

Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.

Opinion by ORTH, Judge.

THE CRIMES

Shortly before midnight on 11 June 1983, Carlton Xavier Fletcher and Minh Huong Phamdo were ambushed on the parking lot of the Goddard Minimart in Greenbelt, Maryland, and murdered by a wilful, deliberate and premeditated killing. Fletcher was a member of the Prince George's County Police Department, working on his own time as a security guard for Minimart. Phamdo was the assistant manager of Minimart. He had just left the store carrying bags containing some $24,000 of the store's money which he was to place in a bank's night depository. Fletcher was seated in a marked police cruiser waiting to escort Phamdo to the bank. Subsequent investigation indicated that Phamdo walked to the police car and gave Fletcher his pay as a security guard. As Phamdo walked toward his car, parked next to the cruiser, a man emerged from a nearby wooded area and fatally shot Phamdo; the slug from a twenty gauge shotgun struck the victim in the chest. The assailant seized the money and fled. Virtually at the same time that Phamdo was shot, another man blew out a rear window of the police cruiser with a blast from a twelve gauge shotgun, and immediately thereafter fired a second shot which struck Fletcher in the left side of his neck, killing him. Fletcher's assailant then fled, also on foot.

THE TRIAL

The Guilt Stage

On 14 July 1983, the Grand Jury for Prince George's County returned an indictment jointly charging Kamel Ali Elfadl and Kenneth James Lodowski with the murder in the first degree of Fletcher (count 1) and of Phamdo (count 2), with the armed robbery of Phamdo (count 7) and with six offenses of conspiracy relating to those crimes (counts 3, 4, 5, 6, 8 and 9).

Following an order of the Circuit Court for Prince George's County that the defendants be tried separately The Punishment Stage

                the court transmitted the first, second and seventh counts, charging Lodowski with the murders and the robbery, to the Circuit Court for Charles County for trial. 1  Lodowski [490 A.2d 1232] was convicted by a jury as a principal in the first degree of the murder in the first degree of Fletcher under the first count, as a principal in the second degree of the murder in the first degree of Phamdo under the second count, and of the armed robbery under the seventh count.   Whereupon the Circuit Court for Prince George's County ordered that counts 3, 4, 5, 6, 8 and 9 against Lodowski be transmitted to the Circuit Court for Charles County for trial.   Lodowski pleaded not guilty as to those counts and elected to be tried by the court.   The evidence was presented by a stipulated set of facts.   The court found Lodowski guilty of the conspiracies as charged in each of the six counts
                

The State had served a timely notice on Lodowski that it intended to seek a sentence of death and had advised him of each aggravating circumstance upon which it intended to rely. Upon Lodowski's conviction under the first count, a separate sentencing proceeding was conducted to determine whether he was to be sentenced to death or to imprisonment for life, all as required by and pursuant to Maryland Code (1957, 1982 Repl.Vol., 1983 Cum.Supp.), Art. 27, § 413 and Maryland Rule 772A (now Rule 4-343). Inasmuch as Lodowski waived a jury sentencing proceeding, the proceeding was conducted before the Circuit Court for Charles County alone. Evidence was received and arguments heard. The court determined by a preponderance of the evidence that the mitigating circumstances did not outweigh the aggravating

                circumstances, and therefore the death sentence was to be imposed.   Code, Art. 27, § 413(h)(2).   The court imposed that sentence as to the conviction of Lodowski as a principal in the first degree under the first count of the indictment, namely that he "feloniously, wilfully and of [his] deliberately premeditated malice aforethought did kill and murder Carlton Xavier Fletcher...." 2 § 413(k)(3)
                

THE APPEAL

"Whenever the death penalty is imposed, and the judgment becomes final," we are under statutory command to "review the sentence on the record." Code, Art. 27, § 414(a). See Md.Rule 898, entitled "Capital Cases--Review of Sentence and Appeal." Any appeal from the verdict shall be consolidated in this Court with the review of the death sentence, Art. 27, § 414(d), and it is "[i]n addition to the consideration of any errors properly before the Court on appeal," that we "shall consider the imposition of the death sentence," § 414(e). "Except as otherwise expressly or by necessary implication provided in [Rule 898], the other Rules of Chapter 800 [entitled 'Review by the Court of Appeals'] shall be applicable to proceedings in a capital case. In the event of any conflict or inconsistency between [Rule 898] and any other Rule in Chapter 800, the provisions of [Rule 898] shall prevail." Md.Rule 898 g.

Lodowski presents us with sixteen questions for review. We first look at his allegations of error concerning certain pretrial motions.

THE PRETRIAL MOTIONS

The Validity of the Indictment

Lodowski filed a pretrial motion to dismiss each and every count of the indictment on the ground that it "was The Legislature has declared that it is the policy of this State that "when a person accused of a criminal offense is presented to a grand jury," he has the right to a jury "selected at random from a fair cross section of the citizens of the State who reside in the county where the court convenes." Maryland Code (1974, 1984 Repl.Vol.) § 8-102(a) of the Courts and Judicial Proceedings Article. This policy is explicated by subsection (b):

                issued by a Grand Jury which was illegal and invalid since it was selected by a method not reasonably designed to produce a jury representation[490 A.2d 1233]  of a cross section of the community."   Lodowski claims that the trial court erred in denying the motion.   If Lodowski were correct, the case now before us would be at an end because there would be no charging document outstanding on which he could be tried.   Md.Rule 710 (now Rule 4-201).
                

Every citizen of this State who maintains his name on the roll of voters registered for State elections has:

(1) The opportunity to serve on grand and petit juries; and

(2) The obligation to serve when summoned as a juror.

This policy is implemented by § 8-104, which provides that

[t]he jury commissioner or the clerk of the court shall select the names of prospective jurors from among those persons 18 years old or older whose names appear on the voter registration lists, and from such additional sources permitted by a plan adopted under § 8-201. Volunteers for jury service shall be refused, and recommendations, if made, may not be accepted.

In Wilkins v. State, 270 Md. 62, 310 A.2d 39 (1973), cert. denied, 415 U.S. 992, 94 S.Ct. 1592, 39 L.Ed.2d 889 (1974), we considered and rejected the contention that a jury selected from voter registration lists did not represent a fair cross section of the citizens of the State who reside in the county where the court convenes. We looked to constitutional provisions and to decisions of the Supreme Court of the United States and other jurisdictions. We found that [n]either the Constitution, nor the requirements of common sense, demand a scientifically perfect system for producing a representative cross section of the community. Nor has such a system been devised.... All that is required is a method reasonably designed to produce a jury representative of a cross section of the community. The objective selection of names at random from registration lists as provided for by Article 51 [of the Md.Code, now Judicial Proceedings Article, Title 8] "fully satisfies this requirement and commends itself to an impartial jury system." Id. at 69, 310 A.2d 39, quoting United States v. Greenberg, 200 F.Supp. 382, 391 (S.D.N.Y.1961).

Colvin v. State, 299 Md. 88, 103-07, 472 A.2d 953 (1984), is fully consistent with Wilkins. ³ We said in Colvin:

The use of voter registration lists is designed to produce an array which is a representative cross-section of the community. This official means of selecting prospective jurors is not unconstitutional even when it may have some racially disproportionate impact. Id. at 106, 472 A.2d 953 (footnote omitted).

We hold that the denial of the motion to dismiss the indictment was not erroneous. The indictment stands as a proper charging document on which to try Lodowski.

The Removal of the Case for Trial

"[T]he People of the State of Maryland ... taking into [their] serious consideration the best means of establishing a good Constitution in this State for the sure foundation and more permanent security thereof" made certain declarations which are known as the "Declaration of Rights." One of these declarations, now designated as Article 20, is "[t]hat the trial of facts, where they arise, is one of the greatest securities of the lives, liberties and estate of the (b) In all cases of presentments or indictments for offenses that are punishable by death, on suggestion in writing under oath of either of the parties to the proceedings that the party cannot have a fair and impartial trial in the court in which the proceedings may be pending, the court shall order and direct the...