Tichnell v. State

*477

Eldridge, J.,

concurring:

I concur with the result in this case and with most of the Court’s opinion.

Maryland Code (1957, 1982 Repl. Vol.), Art. 27, § 414, relating to appeals in death sentence cases, provides in subsection (e) that, after reviewing the trial and sentencing hearing for errors, this Court shall consider the imposition of the death sentence and shall determine the following:

"(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

(2) Whether the evidence supports the jury’s or court’s finding of a statutory aggravating circumstance under § 413 (d);

(3) Whether the evidence supports the jury’s or court’s finding that the aggravating circumstances are not outweighed by mitigating circumstances; and

(4) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

The present appeal is the first to be decided, under this State’s recently enacted death penalty statute, in which the Court has found no reversible error in the trial or sentencing hearing. Consequently, the Court’s opinion is the first one under the statute which has reached a consideration of the death penalty.

In this case, I agree with those portions of the Court’s opinion rejecting Tichnell’s claims of error m his third sentencing hearing and rejecting his constitutional attack upon the sentence. I also agree with those parts of the Court’s opinion holding that the sentence should not be set aside under the above-quoted paragraphs (1), (2) and (3) of § 414 (e). Although concurring in the result of the Court’s proportionality review under paragraph (4), I disagree with *478 that portion of Part V (B) of Chief Judge Murphy’s opinion which concludes "that the legislatively intended inventory of cases from which 'similar cases’ are to be culled encompasses only those first degree murder cases in which the State sought the death penalty ....”

The General Assembly, by mandating in § 414 (e) (4) that we determine whether the death sentence is disproportionate to the penalty imposed in "similar cases, considering both the crime and defendant,” has specifically focused upon the two factors to be considered. They are the "crime” and the "defendant.” Nothing in the language of the statute supports the view that our consideration should be further limited to those cases in which the prosecutor has exercised his discretion to seek the death penalty. The crime and defendant in another case may be similar to the crime and defendant in the case under review even though the prosecuting attorney in the former case decided, for whatever reason, not to seek the death penalty. 1

Consideration of cases in which the State did not seek the death penalty permits our proportionality review to serve as a check against the aberrant actions of a prosecutor. For example, if in a particular type of murder case the State’s Attorneys throughout Maryland generally do not seek the death penalty, but if the State’s Attorney in one county regularly does seek and obtain the death penalty in the same type of case, the result would be an arbitrary imposition of the death penalty. In appeals from that one county, we would be confronted with the imposition of the death penalty in a type of case in which the penalty is not generally imposed. Unless we were willing to consider similar cases from the other counties in which the death penalty was not sought, this aberration would not be cured by our proportionality review.

*479 In Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), plurality opinion of Justice Stewart, joined by Justices Powell and Stevens, pointed out that the decision to impose capital punishment must be "guided by standards” ( 428 U.S. at 199 ), and that appellate proportionality review "serves as a check against the random or arbitrary imposition of the death penalty” (id. at 206). The concurring opinion of Justice White, joined by the Chief Justice and Justice Rehnquist, in dealing with the petitioner’s argument based upon the alleged standardless prosecutorial discretion in deciding to seek the death penalty, stated (id. at 225):

"Petitioner’s argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. * * * If the cases really were 'similar’ in relevant respects it is unlikely that prosecutors would fail to prosecute them as capital cases; and I am unwilling to assume the contrary.”

In Maryland, however, we now have facts demonstrating that prosecutors throughout the State do not employ common standards in deciding to seek the death penalty. Unlike Justice White in Gregg , we cannot assume that prosecutors generally seek the death penalty in cases which are similar. In Calhoun v. State, No. 129, September Term, 1981, and No. 5, September Term, 1982, which was consolidated with the instant case for reargument on the matter of proportionality review, and which has not yet been decided, the Public Defender’s Office made a record which convincingly demonstrated that there are no common stan *480 dards guiding the prosecutors in this State. 2 Anyone who reads Baltimore city newspapers or pays attention to Baltimore city news broadcasts is fully aware of the completely divergent policies concerning capital cases adhered to by different State’s Attorneys Offices in the Baltimore metropolitan area.

In light of the known facts concerning the policies of Maryland State’s Attorneys, proportionality review limited to those cases in which the death penalty is sought presents serious constitutional questions under the principles of Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), and its progeny. It is a settled principle in this State that a construction of an enactment, which does not cast doubt upon the statute’s constitutionality, is preferred. E.g., Davis v. State, 294 Md. 370, 377 , 451 A.2d 107 (1982); State v. Zitomer, 275 Md. 534, 544-545 , 341 A.2d 789 (1975), cert. denied sub nom. Gasperich v. Church, 423 U.S. 1076 , 96 S.Ct. 862 , 47 L.Ed.2d 87 (1976); City of Gaithersburg v. Montgomery County, 271 Md. 505, 510 , 318 A.2d 509 (1974); Md. St. Bd. of Barber Ex. v. Kuhn, 270 Md. 496, 505 , 312 A.2d 216 (1973); District Land v. Wash. S. S. C., 266 Md. 301, 312 , 292 A.2d 695 (1972); Baltimore County v. Mo. Realty, 219 Md. 155, 159 , 148 A.2d 424 (1959).

• Therefore, I cannot agree with the Court’s construction of § 414 (e) (4), limiting the phrase "similar cases” to encompass only those in which prosecuting attorneys sought the death penalty. I believe that the Legislature contemplated something more flexible, focusing upon murder cases in which the crime itself was similar and the circumstances surrounding the defendant were similar.

Nevertheless, the Court’s opinion in this case, after setting forth its construction of § 414 (e) (4), goes on to state as follows:

*481 "In so concluding, we do not preclude any defendant whose death sentence is under appellate review from presenting argument, with relevant facts, that designated noncapital murder cases are similar to the case then under scrutiny and should be taken into account in the exercise of our proportionality review function.”

As I understand the above-quoted language, the Court is willing to consider murder cases in which the State did not seek the death penalty, and which are brought to the Court’s attention by the defendant. Thus, my disagreement with the Court’s construction of § 414 (e) (4) becomes academic and of little or no practical consequence. If it is asserted that the imposition of the death sentence in a particular case is an aberration, because prosecutors in Maryland generally do not seek the death penalty in that type of case, under the Court’s opinion the defendant is entitled to rely upon the "similar” cases in which prosecutors did not ask for the death penalty. If, after considering those cases along with the ones in which we receive trial judge reports, we agree with the defendant’s argument that the death sentence is not generally imposed in the type of case before us, the sentence will be set aside.

Furthermore, I agree with the procedure requiring the defendant to bring to our attention other murder cases in which the death penalty was not sought and which the defendant wishes us to consider. Contrary to the view expressed in the dissent, I do not believe that this procedure is too burdensome for the defendant or that it is the Court’s responsibility "to assure that all death-eligible cases in which the death penalty has not been sought” be included in the inventory. I know of no workable and valid procedure by which the Court itself could maintain an inventory of all murder cases which may have been "death-eligible” and could select from such inventory the sufficiently similar cases for consideration in our proportionality review. The defendant’s attorney, with the resources of the State Office *482 of Public Defender, 3 is in a much better position to determine which non-capital murder cases should be called to the Court’s attention for purposes of proportionality review. 4

Finally, I agree with Part VI of the Court’s opinion concerning the death sentence in this case.

. As pointed out in both the Court’s opinion and Judge Davidson’s dissenting opinion, § 414 (e) (4) was patterned after the proportionality review provision of the Georgia death penalty statute, and, as discussed in Judge Davidson’s opinion, the Supreme Court of Georgia has flatly taken the position that "[w]e do compare cases as to which the death penalty could have been sought by the prosecutor but was not.” Horton v. State, 249 Ga. 871 , 880 n. 9, 295 S.E.2d 281 (1982), cert. denied, U.S. , 103 S. Ct. 837 , 74 L.Ed.2d 1030 (1983) (emphasis in the original).

. In that case there was testimony, from 18 of the State’s 24 State’s Attorneys offices, which showed the extreme differences in the standards employed to decide whether the death penalty will be sought in an eligible case. Judge Davidson’s dissenting opinion in the case at bar reviews in some detail the record in the Calhoun case.

. Such assistance from the Public Defender’s Office would appear to be available to any attorney representing in this Court a defendant under a death sentence. Report Of The Public Defender, Fiscal Year 1981, p. 43.

. In his concurring opinion, Judge Cole expresses a preference for a court-promulgated rule requiring each State’s Attorney to maintain a file of those cases where the death penalty could have been sought. I have serious doubts that such a rule would be within our rule making authority under Art. IV, § 18, of the Maryland Constitution. Moreover, the proposed rule might also violate Article 8 of the Maryland Declaration of Rights. See, e.g., Duvall v. Lacy, 195 Md. 138, 149 , 73 A.2d 26 (1950) ("there is no authority in the judiciary to control the members of the executive department in carrying out their duties, so long as no plain violation of the Constitution or the law is found to exist”); Miles v. Bradford, Governor of Maryland, 22 Md. 170, 183-185 , 85 Am. Dec. 643 (1864).