Lovell v. State

• Citation: 702 A.2d 261,347 Md. 623
• Decision Date: 01 September 1996
• Docket Number: No. 97,97
• Parties: Ivan Fitzherbert LOVELL v. STATE of Maryland. ,
• Court: Court of Appeals of Maryland

Page 623

347 Md. 623

702 A.2d 261

Ivan Fitzherbert LOVELL v. STATE of Maryland.

No. 97, Sept. Term, 1996.

Court of Appeals of Maryland.

Nov. 12, 1997.

Melissa M. Moore, Geraldine K. Sweeney, Asst. Public Defenders (Stephen E. Harris, Public Defender, on brief), Baltimore, for Appellant.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Appellee.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI ^*, RAKER and WILNER, JJ.

RODOWSKY, Judge.

This is an automatic review of a death sentence in a case removed from Somerset County to Talbot County. On an agreed statement of facts the defendant pled guilty to murder. A jury imposed the death sentence.

On the night of October 16-17, 1995, the petitioner, Ivan Fitzherbert Lovell (Lovell), a drug dealer, was returning to North Carolina after having been resupplied by a source in New York City. Lovell was driving a red 1992 Plymouth Sundance that he had borrowed for the trip, and he was accompanied by one William Smith Lynch who was seated in the front passenger seat. Lovell was transporting two packages of crack cocaine weighing 159.5 grams and 173.9 grams, and a package of powder cocaine weighing 162.9 grams. The street value of this illicit cargo was $63,480. Lovell was armed with a .45 caliber semi-automatic handgun. Shortly before 1:00 a.m., while southbound on U.S. Route 13, one or two miles south of Princess Anne in Somerset County, Maryland, the vehicle's speed was seventy-four miles per hour in a fifty-five mile-per-hour zone.

At that time and place Trooper First Class Edward A. Plank (Tfc. Plank) and one of his road partners, Trooper Dennis Allan Lord (Trooper Lord), of the Maryland State Police were on road patrol duty on the 11:00 p.m.-7:00 a.m. shift out of the Princess Anne Barrack. Each wore a Maryland State Police uniform and each was using an unmarked State Police automobile equipped with flashing lights and sirens. Tfc. Plank, who was operating a stationary radar, measured the speed of the red Sundance and gave pursuit. Almost immediately thereafter Trooper Lord pursued a pickup truck for a headlight violation, and Trooper Lord stopped that truck approximately 300 yards north of the place where Tfc. Plank had stopped the Sundance.

The driver of the Sundance did not produce a motor vehicle operator's license, but he did produce an employee identification card in the name of Charles E. Billups, Jr. from an auto body repair shop in Kill Devil Hills, North Carolina. Tfc. Plank requested the Berlin Barrack to run a license and registration check, and he wrote two traffic citations for "Charles Edward Billups, Jr.," one for speeding and the other for failure to display a driver's license on demand. Tfc. Plank had the driver sign the citations, but the officer did not furnish the driver copies at that time, apparently awaiting the report from the Berlin Barrack. The parties stipulated that "Tfc. Plank then noticed what appeared to be the name of Ivan F. Lovell written on the two citations--the name had been overwritten with the name of Charles Billups." At that point Tfc. Plank radioed for backup by Trooper Lord who then drove south on Route 13 and parked behind Tfc. Plank's vehicle.

After having conversed with Tfc. Plank in the latter's vehicle, Trooper Lord returned to his car to get his handheld radio. As Trooper Lord was walking back toward Tfc. Plank's car, Tfc. Plank walked to the driver's side of the Sundance. Trooper Lord heard a conversation, saw a flash of light, heard a gunshot, and saw Tfc. Plank fall to the ground. Trooper Lord immediately fired two shots at the driver's side of the Sundance. The driver fired at least two shots at Trooper Lord who completely discharged his weapon in returning fire before the Sundance sped away. Trooper Lord radioed for assistance, but Tfc. Plank was dead.

The bullet had entered one-quarter of an inch to the left of the tip of Tfc. Plank's nose and proceeded on a slightly downward angle to the base of the skull where it severed the brain stem. The shot had been fired from a distance of twelve to eighteen inches from Tfc. Plank's face where it left a three-inch spread of gunpowder. Tfc. Plank had not removed his sidearm from its holster.

Trooper Lord knew that one of his shots had broken the rear window of the Sundance. Actually, one of his shots had passed through Lovell's right forearm, shattering the midportion of the radius, but leaving the ulna intact. In addition, Lovell had suffered a superficial gunshot wound of the scalp.

Lovell proceeded in the Sundance to the vicinity of 6302 Crisfield Highway where he found a pond into which he partially submerged the car. At some point Lynch and Lovell had separated. ¹ Lovell went on foot to a house at the stated address--the home of Andrew and Marguerite Robinson--where he rang the doorbell on four or five occasions between 1:30 a.m. and 2:00 a.m. The Robinsons did not answer because they saw no car. Lovell then broke into the Robinsons' home through a back bedroom window. Mr. Robinson attacked Lovell by swinging an aluminum extension handle from a vacuum cleaner. The parties have stipulated that Mrs. Robinson "ran through the house ... to call 911.... Lovell ... grabbed [Mrs.] Robinson and put a pistol to her head. [Mr.] Robinson struck ... Lovell and they struggled on the floor. [The] Robinson[s] would testify that during this period of time, ... Lovell fired four or five shots in the house."

The Robinsons subdued Lovell and held him until the police arrived. A .45 caliber handgun, lying next to Lovell, was recovered by the police. Lovell was taken to Peninsula Regional Medical Center where his wounds were treated and three pins were inserted to repair the comminuted fracture in his right forearm. He was discharged from the hospital six days later, on October 23, 1995.

As quoted in the stipulation, Lovell, who is African American, told one of the hospital nurses the following:

" 'I guess this is the last time you going to see me. Well, maybe you'll see me in a few years when I'm dead. I guess I'm not going to go to heaven because I'm afraid of dying. I'm afraid to die. The caucasians can kill a whole nation of my people, but you kill a cop and they made a big deal out of it.' When [the nurse] asked if [Lovell] was sorry for what he did he responded, 'No, not really.' "

When a Commissioner of the District Court of Maryland conducted an initial appearance interview of Lovell at the hospital, Lovell stated, "I did it."

The parties also stipulated concerning physical evidence. This includes the fact that the .45 cartridge cases found in the Robinsons' residence and the .45 cartridge cases found at the murder scene were fired from the same handgun. Further, Lovell's right thumb print was found on one of the traffic citations written by Tfc. Plank to Charles Billups. In addition, chips of red paint found at the murder scene were consistent with the paint on the Sundance recovered from the pond near the Robinsons' home.

Represented by the Chief of the Capital Defense Division of the Maryland Public Defender's Office, Lovell entered a guilty plea to the first-degree, premeditated murder of Tfc. Plank. He also pleaded guilty to assault with intent to murder Trooper Lord, burglary of the Robinsons' home, assault upon each of them, use of a handgun in the commission of a crime of violence, and possession of a controlled dangerous substance with intent to distribute.

Lovell elected to be sentenced by a jury for the capital murder. In a proceeding that began on June 24, 1996, and ended on June 27, 1996, approximately one-half of which was consumed in selecting a jury, the jury imposed a sentence of death. Aggravating factors found by the jury were that Tfc. Plank was "a law enforcement officer who was murdered while in the performance of his duties" and that Lovell had committed the murder "in furtherance of an escape or an attempt to escape from or evade the lawful custody, arrest, or detention of or by an officer or guard of a correctional institution or by a law enforcement officer." Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 413(d)(1), (3). The jury had been instructed to find the existence of one statutorily listed mitigating factor, i.e., the absence of any previous conviction for a crime of violence. The jury unanimously found that there were no other mitigating factors, either among those statutorily listed, see Art. 27, § 413(g)(2) through (7), or otherwise, see Art. 27, § 413(g)(8). After the jury rendered its death sentence, the court imposed consecutive sentences for the remaining convictions totaling 110 years.

On this appeal Lovell raises issues concerning:

I. The voluntariness of his guilty plea;

II. His being required to appear before the jury with his hands and feet shackled;

III. The sufficiency of the evidence to support the § 413(d)(3) aggravating factor;

IV. The failure of the trial court to respond to the jury's inquiry concerning the mitigating factor of youthful age;

V. The exclusion of five venirepersons for cause; and

VI. The alleged lack of a fair cross-section in the venire.

Additional facts will be stated in the discussion of the respective issues.

I

Lovell seeks to have his guilty plea to first-degree murder stricken because the record does not reflect that it was made "with understanding of the nature of the charge." Maryland Rule 4-242(c). ² More specifically, Lovell contends that

"there is nothing on the record to indicate that appellant understood, when he pled guilty ... that he was admitting he murdered Trooper Plank with premeditation, deliberation, and wilfulness.... The nature of the charge of first degree murder is that it differs from all other types of murder in the intent.... The requisite intent which the accused must possess at the time of a killing in order to be convicted of first degree murder is described by three words:...