# Tichnell v. State

> Court of Appeals of Maryland · November 30, 1983 · 297 Md. 432

URL: https://www.frixlaw.com/law-library/cases/9748265

## Case

- **Full name:** Richard Danny Tichnell v. State of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** November 30, 1983
- **Citations:** 297 Md. 432; 468 A.2d 1
- **Precedential status:** Published
- **Opinion:** Dissent by Davidson
- **Judges:** Murphy, Smith, Eldridge, Cole, Davidson, Rodowsky, Couch
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9748265

## How later opinions describe it (automated extraction)

- noting that “proportionality review is designed to effectuate the consistent and fair application of the death penalty”
- concluding proportionality-review process may take into account non-capital murder cases

## Opinion text

*485
Davidson, J.,
dissenting:
The majority here determines that under Maryland Code (1957, 1982 Repl. Vol.), Art. 27, § 414 (e) (4) "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 under § 413, whether it was imposed or not.” Moreover, the majority here concludes "that the death sentence imposed upon Tichnell was neither excessive nor disproportionate to the penalty imposed in similar cases in Maryland, considering both the crime and the defendant.” Consequently, the majority affirms the death sentence imposed. I do not agree. Accordingly, I respectfully dissent.
I
The United States Supreme Court requires that "capital punishment be imposed fairly, and with reasonable consistency, or not at all.” Eddings v. Oklahoma, 455 U.S. 104, 112 , 102 S.Ct. 869, 875 (1982). Indeed, the purpose of the Supreme Court’s standards for imposition of the death penalty is to "serve both goals of measured, consistent application and fairness to the accused.” Eddings, 455 U.S. at 111 , 102 S.Ct. at 874-75 . Moreover, that Court has expressly recognized that the function of appellate review is to achieve these goals. In Jurek v. Texas, 428 U.S. 275 , 276, 96 S.Ct. 2950, 2958 (1976), the Supreme Court stated:
"By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law.” (Emphasis added.)
More particularly, the Supreme Court has expressly recognized that proportionality review is designed to effectuate the consistent and fair application of the death penalty. Thus, in Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 (1976), the Supreme Court acknowledged that the primary function of a state reviewing court in performing propor *486 tionality review is to assure that the death penalty is not imposed unless it has generally been imposed in similar cases throughout the state. There the Supreme Court said:
"In performing its sentence-review function, the Georgia court has held that 'if the death penalty is only rarely imposed for an act or it is substantially out of line with sentences imposed for other acts it will be set aside as excessive.’ Coley v. State, 231 Ga., at 834, 204 S.E.2d, at 616. The court on another occasion stated that 'we view it to be our duty under the similarity standard to assure that no death sentence is afñrmed unless in similar cases throughout the state the death penalty has been imposed generally....’ Moore v. State, 233 Ga. 861, 864 , 213 S.E.2d 829, 832 (1975). See also Jarrell v. State, supra, at 425, 216 S.E.2d, at 270 (standard is whether juries generally throughout the state have imposed the death penalty’); Smith v. State, 236 Ga. 12, 24 , 222 S.E.2d 308, 318 (1976) (found 'a clear pattern’ of jury behavior).” Gregg, 428 U.S. at 204-05 , 96 S.Ct. at 2940 (emphasis added).
In holding the Georgia capital-sentencing system constitutional on its face, the Supreme Court concluded:
"The provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.” Gregg, 428 U.S. at 206 , 96 S.Ct. at 2940 (emphasis added).
*487 Article 27, § 414 (e), enacted in the wake of Gregg , is patterned after the proportionality review provision of the Georgia death penalty statute. See Ga. Code Ann. § 17-10-35 (c) (1982). 1 Section 414 (e) provides in pertinent part:
"In addition to the consideration of any errors properly before the Court on appeal, the Court of Appeals shall consider the imposition of the death sentence. With regard to the sentence, the Court shall determine:
"(4) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” (Emphasis added.)
Manifestly, the purpose of that provision is to provide consistency and fairness in the imposition of the death penalty by assuring that the death penalty is not imposed unless it has been generally imposed in similar cases throughout the State.
This case involves a question of statutory construction. At issue is the meaning of the term "similar cases” appearing in § 414 (e) (4). The cardinal rule of statutory construction is to ascertain the actual intent of the Legislature. The primary source from which to determine the intention of the Legislature is the language of the statute. If the statutory language is ambiguous, the statute is to be construed reasonably and with reference to the purpose to be accomplished. Scott v. State, 297 Md. 235, 245-46 , 465 A.2d 1126, 1132 *488 (1983); State v. Loscomb, 291 Md. 424, 429 , 435 A.2d 764, 767 (1981); Department of State Planning v. Mayor of Hagerstown, 288 Md. 9, 14 , 415 A.2d 296, 299 (1980). Finally, a penal statute must be strictly construed in favor of the accused. State v. Canova, 278 Md. 483, 496-97 , 365 A.2d 988, 996 (1976); Gatewood v. State, 244 Md. 609, 617 , 224 A.2d 677, 682 (1966); Weinecke v. State, 188 Md. 172, 176 , 52 A.2d 73, 74 (1947). I shall apply these general rules of statutory construction here.
In enacting § 414 (e) (4), the General Assembly considered the scope of the inventory of cases necessary to assure effective proportionality review. Thus, in a letter dated 14 December 1977 from the Governor’s Chief Legislative Officer to the General Assembly, it was said with respect to § 414 (e):
"In addition to any other considerations properly before the Court, subsection (E) requires the Court to make four determinations regarding the death sentence. Those considerations require the court to view the evidence in light of each of the court’s or jury’s separate written decisions. Also required is a comparison of the penalty imposed in cases which are similar to the murder committed in the instant case and to the defendant who committed the crime. Unlike the Georgia statute, the Court is not limited to cases which occurred after a certain date. The Court is free to consider any similar cases, and it must refer to them in its decision.” (Emphasis added.)
This legislative history 2 establishes that the General Assembly intended that the broadest possible inventory of similar cases be utilized in Maryland’s proportionality review procedure. 3
*489 Notwithstanding the General Assembly’s intent that "any” similar cases be considered, the majority chooses to restrict the inventory of similar cases to "only those first degree murder cases in which the State sought the death penalty under § 413, whether it was imposed or not,” and to exclude those "other death-eligible murder cases in which the prosecutor could have, but did not seek the death penalty.” The majority, however, offers no affirmative justification for this exclusion.
In my view, "death-eligible murder cases in which the prosecutor could have, but did not seek the death penalty” are "similar cases” within the scope of § 414 (e) (4). In that section, the General Assembly expressly outlined the characteristics to be taken into account in proportionality review. There it stated that in determining whether the death penalty is disproportionate "both the crime and the defendant” should be considered.
With respect to the crime committed in this case, the distinguishing characteristics *** 4 are that Tichnell killed a police officer in an attempt to evade arrest. Moreover, with respect to the defendant in this case, the distinguishing characteristic is that Tichnell had not previously been found guilty of a crime of violence. Consequently, in determining what constitutes a case similar to this case, these distinguishing characteristics must be taken into account. Such distinguishing characteristics undoubtedly are present, not only in cases "in which the State sought the death penalty ... whether it was imposed or not,” but also in those "other death-eligible murder cases in which the prosecutor could have, but did not seek the death penalty.” Under these circumstances, such cases should be included in the inventory.
*490 In my view, "death-eligible murder cases in which the prosecutor could have, but did not seek the death penalty” must be included in the inventory of relevant cases in order to achieve the goal of proportionality review — the consistent and fair application of the death penalty. Recently, in Enmund v. Florida, 458 U.S. 782, 801 , 102 S.Ct. 3368, 3379 (1982), the Supreme Court held that death was a disproportionate penalty for a felony murder in which the defendant, the driver of a get-away car, did not himself kill, attempt to kill, or intend that a killing take place. In reaching this result, the plurality 5 relied upon legislative judgments and sentencing decisions of juries, both of which were regarded as significant and reliable objective indices of contemporary standards of decency. Enmund, 458 U.S. at 788-94 , 102 S.Ct. at 3372-75 . In response to the dissent, 6 the plurality said:
"The dissent criticizes these statistics on the ground that they do not reveal the percentage of homicides that were charged as felony murders or the percentage of cases where the State sought the death penalty for an accomplice guilty of felony murder. We doubt whether it is possible to gather such information, and at any rate, it would be relevant if prosecutors rarely sought the death penalty for accomplice felony murder, for it would tend to indicate that prosecutors, who represent society’s interest in punishing crime, consider the death penalty excessive for accomplice felony murder.” Enmund, 458 U.S. at 796 , 102 S.Ct. at 3376 (emphasis added) (citation omitted).
In conclusion, the plurality said:
"Although the judgments of legislatures, juries and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth *491 Amendment permits imposition of the death penalty. . . .” Enmund, 458 U.S. at 797 , 102 S.Ct at 3376 (emphasis added).
Thus, all nine Justices of the Supreme Court agreed that because the judgment of prosecutors constitutes an objective index of contemporary standards of decency, the fact that in certain circumstances prosecutors rarely seek the death penalty is relevant and should be considered in determining whether the death penalty is excessive or disproportionate.
Subsequent to Enmund , the Supreme Court of Georgia, in Horton v. State, 249 Ga. 871 , 295 S.E.2d 281 (1982), interpreted the scope of the term "similar cases” appearing in the Georgia statute. The Court, citing Enmund , expressly noted:
"We do compare cases as to which the death penalty could have been sought by the prosecutor but was not.” Horton, 249 Ga. at 880 n.9, 295 S.E.2d at 289 n.9.
Consequently, the Supreme Court of Georgia determined, in essence, that "death-eligible murder cases in which the prosecutor could have, but did not seek the death penalty” are included in the inventory of cases utilized for proportionality review thus acknowledging that the exercise of prosecutorial discretion is relevant in determining whether the death penalty is excessive or disproportionate. 7
Maryland’s death penalty statute is patterned upon the Georgia statute. Thus, the Supreme Court of Georgia’s interpretation of the term "similar cases” based upon the United States Supreme Court’s analysis in Enmund is persuasive authority. 8 That interpretation supports the conclusion that *492 in Maryland "death-eligible murder cases in which the prosecutor could have, but did not seek the death penalty” must be included in the relevant inventory of cases utilized for proportionality review.
For the first time, this Court has before it data concerning the exercise of prosecutorial discretion in death penalty cases. 9 This data dramatically demonstrates that the inventory of relevant cases for proportionality review must include all death-eligible murder cases — not only those in which the prosecutor sought the death penalty, but also those in which he did not.
This data reveals that in Maryland prosecutors seek the death penalty in only 7.8% of the death-eligible cases, whereas in 92.2% of the death-eligible cases the death penalty is not sought. 10 Consequently, this data establishes that Maryland prosecutors rarely seek the death penalty, a fact that is relevant, in and of itself, in determining whether the death penalty is disproportionate.
More important, the purpose of proportionality review is to assure that a person is not sentenced to death unless the death penalty has been imposed generally in similar cases throughout the State. Gregg, 428 U.S. at 205 , 96 S.Ct. at 2940. If this purpose is to be effectuated, under § 414 (e) (4), a person sentenced to death must have his background and the nature and the circumstances of the crime committed *493 compared to the sentence imposed on other persons in this State of similar background who committed a similar crime under similar circumstances. That prosecutors do not seek the death penalty in 92.2% of death-eligible murder cases shows that unless all death-eligible cases are included in the inventory, a significant number of cases involving similar defendants and similar crimes would be excluded from proportionality review.
In addition, the data concerning the exercise of prosecutorial discretion reveals that in cases in which the death penalty has been sought juries in Garrett County have imposed the death penalty in 50% of the cases, whereas juries in Baltimore City have imposed the death penalty in 33%. 11 This data suggests that in these two jurisdictions the death penalty has been imposed in a somewhat consistent manner. The data further reveals, however, that in Maryland there is a substantial variation in the exercise of prosecutorial discretion. In Garrett County prosecutors seek the death penalty in 100% of the death-eligible cases, whereas in Baltimore City, they seek that penalty in only 1.8%. 12 This data further shows that when prosecutorial discretion is taken into account, juries in Garrett County have imposed the death penalty in 50% of all the death-eligible cases, whereas juries in Baltimore City have imposed the death penalty in only ,6%. 13 Consequently, this data demonstrates that in these two jurisdictions the death penalty has been imposed in an inconsistent manner. If death-eligible cases in which the death penalty has not been sought are excluded from the inventory, a person who has committed a crime in Garrett County is deprived of a realistic comparison of the treatment accorded to other *494 persons of similar background who committed a similar crime under similar circumstances in Baltimore City and, indeed, throughout the State.
In my view, if all death-eligible cases are not included in the inventory, it is impossible conscientiously to determine whether the death penalty has been imposed generally in similar cases throughout the State. In essence, the majority’s restriction of the inventory of cases to those in which the prosecutor has sought the death penalty makes it impossible, in a given case, to determine that the imposition of the death penalty is fair and consistent. Such a result is not consonant with the General Assembly’s intent that the broadest possible inventory of similar cases be utilized in Maryland’s proportionality review procedure. More important, such an interpretation is not consonant with the General Assembly’s purpose of assuring consistent and fair application of the death penalty through proportionality review.
Moreover, the data concerning the exercise of prosecutorial discretion raises substantial constitutional questions concerning the majority’s exclusion from proportionality review of death-eligible cases in which the prosecutor has not sought the death penalty. The majority, relying upon footnotes in Gregg, 428 U.S. at 204 -05 n.56, 96 S.Ct. at 2940 n.56, and Proffitt v. Florida, 428 U.S. 242 , 259 n.16, 96 S.Ct. 2960 , 2970 n.16 (1976), has determined that:
"Implicit in [Gregg and Profñtt] is the conclusion that to include in the relevant inventory of cases only those in which the death penalty was sought does not violate the due process or cruel and unusual punishment provisions of the federal constitution.”
Thus, the majority itself recognizes that in Gregg and Profñtt the Supreme Court did not explicitly hold that it ■ is *495 constitutional to restrict the inventory of cases to those in which the death penalty was sought.
In Gregg and Proffitt , the Supreme Court considered only the facial constitutionality of the Georgia and Florida death penalty statutes. These cases were decided by a plurality of the Court. 14 In a concurring opinion in Gregg , Justice White articulated the view that prosecutorial discretion need not be taken into account in proportionality review. There Justice White said:
"Petitioner also argues that decisions made by the prosecutor — either in negotiating a plea to some lesser offense than capital murder or in simply declining to charge capital murder — are standardless and will inexorably result in the wanton and freakish imposition of the penalty condemned by the judgment in Furman. I address this point separately because the cases in which no capital offense is charged escape the view of the Georgia Supreme Court and are not considered by it in determining whether a particular sentence is excessive or disproportionate.
"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 likeli *496 hood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury’s decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt. Thus the prosecutor’s charging decisions are unlikely to have removed from the sample of cases considered by the Georgia Supreme Court any which are truly ’similar. ’ 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.” Gregg, 428 U.S. at 224-25, 96 S.Ct. at 2949 (White J., concurring) (emphasis added).
Manifestly, Justice White’s view is premised upon the assumption, unsupported by facts, that there is no significant variation in the exercise of prosecutorial discretion and consequently that prosecutorial discretion has no impact upon proportionality review. The data before this Court for the first time provides facts concerning the exercise of prosecutorial discretion. This data demonstrates a substantial variation, ranging from 1.8% to 100%, in the percentage of cases in which the death penalty is sought, depending upon the identity of the prosecutor making the determination. 15 Equally important, this data shows that there is a substan *497 tial variation in the standards employed by prosecutors in deciding in which cases to seek the death penalty. 16 In six counties, the prosecutors exercise virtually no discretion; these prosecutors seek the death penalty whenever a single aggravating circumstance is present and mitigating circumstances are not taken into account. In six other counties and Baltimore City, prosecutors exercise considerable discretion. Such prosecutors weigh the aggravating circumstances against the mitigating circumstances in determining whether to seek the death penalty. There are many other variations in the standards employed by prosecutors. In some jurisdictions the strength of the case is evaluated. Sometimes the question whether a jury would impose the death penalty is considered. In Baltimore City the death penalty is sought if there is a substantial likelihood that the jury would impose death. In Montgomery County, the death penalty is sought if there is a reasonable possibility. In Charles County, the death penalty is sought unless it is very unlikely that the jury will impose that penalty. In two counties, the prosecutors take public sentiment with respeGt to the case into account, whereas in seven others, they do not. In five counties, prosecutors take the relationship between the accused and the victim into account, whereas in three others they do not. In one county, the prosecutor considers the burden of prosecuting a death penalty case upon the State’s Attorney’s office and the courts, whereas in seven other counties, they do not. A prosecutor in one county seeks the death penalty as a device to obtain a plea bargain, whereas the prosecutors in no other county engage in such a practice. In a single county, the prosecutor seeks the death penalty in felony murder cases only when the aggravating circumstances are separate and distinct from the underlying felony, whereas no prosecutor in any other county has such a policy. Finally, the data before this Court shows that when six prosecutors were asked the hypothetical question whether they would seek the death penalty in a case involving a fourteen-year-old charged with felony murder, *498 three responded that they would and three responded that they would not.
Manifestly, Justice White’s assumption that the standards employed by prosecutors in Georgia will be consistent and that "if the cases really were 'similar’ in relevant respects, it is unlikely that prosecutors would fail to prosecute them as capital cases” may not be well-founded. See Gregg, 428 U.S. at 225 , 96 S.Ct. at 2949 (White, J., concurring). Under these circumstances, the impact upon the Supreme Court of data similar to that before this Court cannot be assessed. It is, nonetheless, apparent that the existence of such data raises the question whether the relevant inventory of cases must include those in which the death penalty was not sought in order for proportionality review to be constitutional.
Subsequent to Gregg , in Enmund , all nine Justices of the Supreme Court agreed that the fact that prosecutors rarely seek the death penalty is relevant and should be considered ip determining whether the death penalty is excessive or disproportionate. Enmund did not involve the question of the scope of the relevant inventory of cases necessary for constitutional proportionality review. Nonetheless, it suggests that the existence of data similar to that before this Court, indicating that prosecutors rarely seek the death penalty, and that there is significant variation in the standards employed and the percentage of cases in which the death penalty is sought, raises the question whether the relevant inventory of cases must include those in which the death penalty was not sought in order for proportionality review to be constitutional. Indeed, subsequent to Enmund , the Supreme Court of Georgia interpreted the scope of the term "similar cases” as including those in which the death penalty could have been sought by the prosecutor but was not. Horton, 249 Ga. at 880 n.9, 295 S.E.2d at 289 n.9.
Under these circumstances, it is clear that the majority’s construction of § 414 (e) (4), restricting the relevant inventory of cases to those in which the prosecutor has sought the death penalty and excluding those death-eligible cases in *499 which the prosecutor has not, raises serious doubts as to its constitutionality. Such a construction should be avoided. 17
I am cognizant of the majority’s statement that "we do not preclude any defendant whose death sentence is under appellate review from presenting argument, with relevant facts, that designated non-capital murder cases are similar to the case then under scrutiny and should be taken into account in the exercise of our proportionality review function.” I do not agree, however, with the members of this Court who concur with the majority’s result in this case that the majority’s construction of § 414 (e) (4) "becomes academic and of little or no practical consequence,” in light of the Court’s expressed willingness "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.”
In essence, after determining that the relevant inventory excludes death-eligible cases in which the death penalty has not been sought, the majority affords the defendant the right to argue that certain such cases should nonetheless be taken into account. Affording a defendant such a right does not eliminate the fatal defect inherent in the proportionality review procedure prescribed by the majority. The fact that a defendant is afforded a right to argue that something should be included in the relevant inventory does not mean that it will be. Thus, although the majority permits death-eligible cases in which the death penalty has not been sought to be taken into account, it does not require the consideration of all death-eligible cases. Consequently, the relevant inventory of cases remains restricted to those in which the death penalty has been sought and continues to exclude all death-eligible cases in which the death penalty has not been sought. In short, in my view, the majority’s statement does nothing more than afford the defendant the right to argue *500 that certain cases excluded from the inventory today should be included and considered tomorrow.
Additionally, even if death-eligible cases designated by the defendant in which the death penalty was not sought were to be taken into account, the fatal defect inherent in the proportionality review procedure prescribed by the majority would not be eliminated. Under such circumstances, as a practical matter, there would still be no assurance that all similar death-eligible cases in which the death penalty has not been sought would be considered in determining whether the imposition of the death penalty is fair and consistent. Only cases of which the defendant has become aware would be considered.
In my view, it is the responsibility of this Court to assure that all death-eligible cases in which the death penalty has not been sought, to be utilized in proportionality review, be included m the inventory. Like Judge Eldridge, the Supreme Court has recognized the enormous difficulty associated with gathering data concerning the exercise of prosecutorial discretion. See Enmund, 458 U.S. at 796 , 102 S.Ct. at 3376 . The responsibility to accumulate such data should not be foisted upon the defendant. This is particularly true, in a case such as this in which the defendant is represented by retained counsel who does not necessarily have available even the limited statistical data available to the Public Defender.
In short, the majority has determined that in proportionality review all similar cases in which the death penalty has been sought are relevant. It has assumed the responsibility, through its rule-making powers, to develop an inventory of all death-eligible cases in which the death penalty has been sought from which relevant similar cases may be culled. The majority then belatedly indicates that similar death-eligible cases in which the death penalty was not sought may be relévant. Nevertheless, without explanation, and without any attempt to adopt a rule such as that suggested by Judge Cole, or any other rule, the Court refuses to develop an inventory of all death-eligible cases in which the *501 death penalty has not been sought from which relevant similar cases may be culled. Unlike Judge Cole, I am not willing to assume that in the absence of a Court rule "various prosecutors will maintain... a data bank which they will readily make available to defense counsel, public or private.” Under the present circumstances, there is no justification whatsoever for the majority arbitrarily to shift this Court’s responsibility to the defendant and to impose upon him a task which is difficult, if not impossible, to perform.
In sum, in my view, under § 414 (e) (4), the inventory of cases utilized for proportionality review must include not only those death-eligible cases in which the prosecutor has sought the death penalty, whether it was imposed or not, but all those death-eligible cases in which the prosecutor did not seek the death penalty. Such a construction is supported by the legislative history of § 414 (e) (4), is consonant with the legislative intent that the broadest possible inventory of similar cases be utilized in Maryland’s proportionality review procedure, avoids serious constitutional questions, and prevents the arbitrary imposition of an unjustified burden upon the defendant. Most important, such an interpretation effectuates the purpose of proportionality review — to assure consistent and fair application of the death penalty — and, therefore, is favorable to the accused. I agree with Judge Seiler who in a dissenting opinion in State v. Mercer, 618 S.W.2d 1, 21 (Mo. 1981) (Seiler, J., dissenting) stated:
"By 'similar cases’ is meant similar capital murders, not limited only to those where both death and life imprisonment were submitted to the jury and then affirmed on appeal, whichever way the case went on punishment. The evil deed is the murder and what accompanied it and that, as well as the defendant, is what must be looked at in comparing what one defendant received in punishment under a capital murder charge with what another received. The fact.. . that the state waived the death penalty in [a capital murder defendant’s] *502 case . . . does not mean that we can ignore his case in making our comparison. Once we accept the idea, as we must, that the death penalty cannot be inflicted at random, or arbitrarily or inconsistently, then necessarily we must take into consideration all capital murders we know about.” (Emphasis added.)
II
Even if I agreed with the majority that under § 414 (e) (4) the relevant inventory of similar cases is restricted to "first degree murder cases in which the State sought the death penalty... whether it was imposed or not,” I would not agree with the majority’s conclusion "that the death sentence imposed upon Tichnell was neither excessive nor disproportionate to the penalty imposed in similar cases in Maryland, considering both the crime and the defendant.”
This is the first case in which this Court has engaged in proportionality review in order to determine whether a death penalty is excessive or disproportionate. It is, therefore, important that the process be defined.
The Eighth Amendment concept of proportionality involves more than merely a measure of contemporary standards of decency. It also requires that the magnitude of the punishment imposed be related not only to the degree of harm inflicted on the victim, but also to the degree of the defendant’s moral culpability, Enmund, 458 U.S. at 814, 822-25 , 102 S.Ct. at 3386, 3390-91 (O’Connor, J., dissenting). The General Assembly has imposed the responsibility of determining whether a death penalty is excessive or disproportionate upon this Court. The aggravating and mitigating circumstances established by the General Assembly represent a legislative judgment that each of those characteristics affects the moral culpability attributable to persons who commit crimes. In making our legislatively mandated comparison, this Court must take each of the relevant distinguishing characteristics into *503 account. The General Assembly further directs this Court, after comparing all of the distinguishing characteristics present in similar cases, to determine whether the defendant in a given case warrants the death penalty. Such a determination requires this Court, utilizing all of the applicable legislative judgments with respect to moral culpability, to decide in essence whether a defendant’s moral culpability is closer to the moral culpability attributable to those sentenced to death or to those sentenced to life imprisonment. Manifestly, a comparison between the degree of moral culpability attributable to a given defendant in a given case, and that attributable to other similar defendants in similar cases is the core of proportionality review.
In considering whether a death penalty is excessive or disproportionate, it is necessary to determine whether in similar cases the death penalty is generally imposed throughout the State. Thus, it is necessary to show that the degree of moral culpability attributable to the defendant is at least as great as that attributable to others in similar cases sentenced to death. If it is questionable whether the defendant’s moral culpability is at least as great as that of others sentenced to death, the focus of proportionality review necessarily shifts from a determination of whether in similar cases the death penalty has been generally imposed throughout the State, to whether the defendant’s moral culpability so far exceeds that of others in similar circumstances sentenced to life imprisonment that the imposition of the death penalty is justified.
Thus, the process of proportionality review demands the striking of the most delicate balances — balances about which reasonable persons may differ. Consequently, it is necessary to proceed with the utmost caution and the greatest care, for in the final analysis, at stake is the delicate balance between the life and death of a human being.
One difficulty inherent in the proportionality review process, acknowledged by the majority, is the selection of similar cases from the relevant inventory of cases. The majority recognizes "that dissimilarities exist between Tichnell’s case *504 and those selected for comparative review.” It laments that "these cases, as well as others in the inventory, are not more similar to Tichnell’s case.” Notwithstanding these inadequacies in the inventory, the majority feels compelled to "complete the comparative review process mandated by § 414 (e) (4).” In so doing, it has determined that there are only five similar cases in the inventory. As a result, the majority has failed to take into account a number of similar cases considering both the crime and the defendant. In my view, there are ten cases in the inventory having distinguishing characteristics similar to those in this case that should be considered here, 18 three of which are considered by the majority. 19
In order to determine whether under § 414 (e) (4) the imposition of the death penalty is excessive or disproportionate, it is necessary to compare similar cases considering both the crime and the defendant. With respect to the circumstances of the crime in this case, the record shows that at approximately 5:25 a.m., Tichnell and a confederate broke into a store for the purpose of stealing guns. The store was not then open and nobody was present. Tichnell’s departure from the scene was interrupted by a deputy sheriff whom he shot and killed. When the police discovered the deputy sheriff, he was lying face down near the store. He had been shot seven times and was dead. Of the *505 seven shots, two were fatal — one in the lower back and one in the back of the head.
With respect to the crime committed in this case, the distinguishing characteristics are that Tichnell killed a police officer in an attempt to evade arrest. Moreover, with respect to the defendant in this case, the record shows that the distinguishing characteristic is that Tichnell had not previously been found guilty of a crime of violence. 20 Consequently, in determining what constitutes a case similar to this case, these distinguishing characteristics must be taken into account.
The majority has considered only one case in which the death penalty was imposed, Calhoun, Criminal No. 26250, Circuit Court for Montgomery County, filed 12-21-81. The comparative distinguishing characteristics in that case are that a police officer was killed while the defendant was attempting to evade arrest. The judgment in Calhoun, however, is presently pending on appeal. 21 More important, unlike Tichnell, in which a police officer was killed during the course of a storehouse breaking, in Calhoun, the police officer was killed during the course of a robbery. This distinction is significant because there is a difference in quality between the crimes of robbery and storehouse breaking. *506 Robbery involves the taking of property from a person, whereas storehouse breaking involves the taking of property from a place. Based upon this difference, the General Assembly has determined that a killing during the course of a robbery constitutes an aggravating circumstance, § 413 (d) (10), that justifies the imposition of the death penalty, whereas a killing during the course of a storehouse breaking does not. Thus, the General Assembly has expressed its legislative judgment that the degree of moral culpability attributable to a person who kills during the course of a robbery exceeds that attributable to a person who kills during the course of a storehouse breaking. Moreover, although Calhoun’s "background” 22 was found to be a mitigating circumstance, unlike Tichnell, he had repeatedly *507 been found guilty of crimes of violence. 23 This distinction is important too because the General Assembly has frequently asserted that the degree of moral culpability attributable to a recidivist exceeds that attributable to a first-time offender and that a recidivist who commits a crime warrants more severe punishment than a first-time offender who commits the same crime under similar circumstances. See, e.g., Md. Code (1957, 1982 Repl.Vol., & 1983 Cum.Supp.), Art. 27, §§ 293, 366, 558, and 643B. 24 In light of this State’s public policy, I can only conclude that the degree of moral culpability attributable to a person of Calhoun’s background, who has repeatedly been found guilty of crimes of violence and who kills a police officer during the course of a robbery, exceeds that of a first-time offender who kills a police officer during the course of a storehouse breaking. Manifestly, the imposition of the death penalty in Calhoun does not establish that the death penalty is generally imposed throughout the State in cases such as Tichnell’s. Consequently, it is necessary to look further.
The majority itself recognizes that the Calhoun case is insufficient to justify the imposition of the death penalty in this case. Consequently, the majority considers four additional cases that in its view have comparative distinguishing characteristics. In each of these cases life imprisonment was imposed. As a result, the focus of the *508 majority’s proportionality review necessarily shifts from a determination of whether in similar cases the death penalty has been generally imposed throughout the State, to whether Tichnell’s moral culpability so far exceeds that of others in similar circumstances sentenced to life imprisonment that the imposition of the death penalty is justified.
Of the four life imprisonment cases considered by the majority, two are cases in which the comparative distinguishing characteristic is that a police officer was killed. In my view, neither of these cases should be considered here. In Sails, CT 82-352, Circuit Court for Prince George’s County, filed 5-24-83, the defendant during the course of a robbery repeatedly shot and ultimately killed a police officer in an effort to avoid arrest. A defense psychiatrist testified that Sails had an antisocial personality and that at the time of the murder he lacked substantial capacity to conform his conduct to the requirements of law. The defendant testified that a short time before the robbery he had taken a "speedball,” a mixture of heroin and cocaine, and also had smoked some marijuana. One of the mitigating circumstances found was that at the time of the murder the defendant’s capacity was substantially impaired. In my view, a defendant whose capacity was substantially impaired at the time of the commission of the crime is so significantly different from a defendant whose capacity was not impaired, that cases in which such dissimilarities exist are not comparable. For this reason, the Sails case is not similar to the Tichnell case and should not be considered here. 25
In Recek, 5254 Criminal Trial, Circuit Court for Washington County, filed 3-24-80, the remaining case in which the comparative distinguishing characteristic is that a police officer was killed, the defendant, who was Tichnell’s accomplice, was sentenced to life imprisonment. There was *509 evidence to show, however, that Recek was not a principal in the first degree in the killing of the police officer, and the jury’s verdict sheet makes clear that it did not believe that Recek was a principal in the first degree. Under these circumstances, Recek was not subject to the death penalty. See § 413 (e) (1). Thus, the Recek case is not similar to the Tichnell case and should not be considered here.
In any event, the majority itself recognizes that it is not possible to justify the imposition of the death penalty on the sole basis of the three cases upon which it relies in which the comparative distinguishing characteristic is that a police officer was killed. Accordingly, the majority seeks other cases that have other comparative distinguishing characteristics. There are twenty-two cases in the majority’s inventory in which the comparative distinguishing characteristic is that a person other than a police officer was killed during the course of a robbery. 26 I agree with the majority that eight of those cases should not be considered here. 27 With respect to the remaining fourteen cases, the majority, without explanation, determines that only two are similar to this case. In both of these cases, the defendants were sentenced to life imprisonment.
*510 In Monroe, Criminal No. 26242, Circuit Court for Montgomery County, filed 12-9-82, the defendant, an accomplice of Calhoun’s, shot and killed an alarm technician during the course of a robbery in an effort to avoid apprehension. Unlike Tichnell, however, Monroe had previously been found guilty of a crime of violence. 28 Nevertheless, the trial court found as a mitigating circumstance that it was unlikely that Monroe would engage in further criminal activity. Additional mitigating circumstances found were that Monroe had previously been employed, had two children, 29 and since his incarceration had made efforts to further his education. In my view, whether the degree of moral culpability attributable to Tichnell, a first-time offender who killed a police officer, exceeds the degree of moral culpability attributable to Monroe, a recidivist who killed a person other than a police officer, is questionable and, therefore, insufficient to justify the imposition of the death penalty.
In Hughes, Criminal No. 25917, Circuit Court for Montgomery County, filed 4-13-82, the defendant killed a person other than a police officer during the course of a robbery. The defendant had not previously been found guilty of a crime of violence and "other” mitigating circumstances were found. The "other” mitigating circumstances, however, were not specified by the jury. Although the comparative distinguishing characteristic that a person other than a police officer was killed during the course of a robbery was present, the crime committed was of a somewhat different quality from that committed by Tichnell. Tichnell set out to steal some guns from a store at a time when no one would be present. In contrast, in Hughes, recognized by the majority as being "the least similar of the cases reviewed,” the *511 defendant set out in broad daylight to gun down and rob the manager of a restaurant who was on his way to deposit the weekend’s receipts of approximately $25,000. Accordingly, it is questionable whether the degree of moral culpability attributable to Tichnell exceeds the degree of moral culpability attributable to Hughes.
Monroe and Hughes, the two cases relied upon by the majority in which a person other than a police officer was killed during the course of a robbery, do not justify the imposition of the death penalty in this case. Consequently, it is necessary to look further.
The majority’s inventory contains twelve additional cases in which the comparative distinguishing characteristic is that a person other than a police officer was killed during the course of a robbery. In four of these cases, arbitrarily excluded from consideration by the majority, the death penalty was imposed, while life imprisonment was imposed in eight.
In Harris, Criminal Case No. 75400, Circuit Court for Baltimore County, filed 9-6-83, during the course of a robbery in a store, the defendant shot the victim, the sole employee present, six times. The defendant had previously been found guilty of a crime of violence. 30 In my view, it is questionable whether the degree of moral culpability attributable to a first-time offender who during the course of a storehouse breaking kills a police officer is as great as that attributable to a recidivist who during the course of a robbery kills a person other than a police officer. Under these circumstances, the imposition of the death penalty in Harris does not, in and of itself, establish that the death penalty is generally imposed throughout the State in cases such as Tichnell’s. Consequently, it is necessary to look further.
In Colvin, Criminal No. 25,349, Circuit Court for Anne Arundel County, filed 9-30-81, the defendant during the course of a robbery stabbed the victim twenty-eight times in *512 her throat. The defendant had previously been found guilfy of a crime of violence. 31 In my view, the moral culpability of a recidivist who during the course of a robbery commits a murder in a brutal and heinous manner exceeds that of a first-time offender who during the course of a storehouse breaking kills a police officer when unexpectedly threatened with apprehension. Manifestly, the imposition of the death penalty in Colvin does not establish that the death penalty is generally imposed throughout the State in cases such as Tichnell’s.
In Stebbing, Criminal Case No. 7681, Circuit Court for Harford County, filed 6-2-81, the defendant strangled a woman who at the time was being raped by the defendant’s husband and thereafter stole the woman’s personal possessions. 32 The following day the defendant and her husband dumped the victim’s partially nude body into a sewer. The defendant had not previously been found guilty of a crime of violence. 33 In light of the brutal and heinous manner in which the crime was committed, the imposition of the death penalty in Stebbing does not establish that the death penalty is generally imposed in cases such as Tichnell’s.
In White, Criminal No. 75226, Circuit Court for Baltimore County, filed 5-19-82, the defendant shot the victim who at the time was riding a moped that the defendant was attempting to steal. The defendant had not previously been found guilty of a crime of violence. An additional mitigating *513 circumstance, "environment,” was found. Although the jury imposed the death penalty, the trial court in its report to this Court determined that the imposition of the death penalty was "questionable.” Under these circumstances, the imposition of the death penalty in White can hardly be regarded as establishing that in circumstances similar to those in White the death penalty is generally imposed throughout the State and most assuredly cannot be regarded as establishing that the death penalty is generally imposed throughout the State in cases such as TichnelTs.
Harris, Colvin, Stebbing, and White, four cases presently pending on appeal in which the death penalty was imposed, neither singly nor collectively, are sufficient to justify the imposition of the death penalty in this case. Consequently, it is necessary to look further.
In all of the remaining eight cases, in which the comparative distinguishing characteristic is that a person other than a police officer was killed during the course of a robbery, the sentence of life imprisonment was imposed. I agree with the majority that five of these cases are not similar to the instant case. 34 With respect to the remaining three cases, arbitrarily excluded from consideration by the majority, the focus of proportionality review necessarily shifts from a determination of whether in similar cases the death penalty had been generally imposed throughout the State, to whether Tichnell’s moral culpability so far exceeds that of others in similar cases sentenced to life imprisonment that the imposition of the death penalty is justified.
In Porter, Criminal No. 22,551, Circuit Court for Anne Arundel County, filed 1-2-81, during the course of a robbery, *514 the defendant shot and killed a gas station attendant who at the time of the shooting was in a kneeling position. The defendant had not previously been found guilty of a crime of violence and it was found unlikely that he would engage in further criminal activity. 35 In my view, whether the degree of moral culpability attributable to Tichnell, who during the course of a storehouse breaking killed a police officer when unexpectedly threatened with apprehension, exceeds the degree of moral culpability attributable to Porter, who during the course of a robbery deliberately executed an innocent victim, is questionable and, therefore, insufficient to justify the imposition of the death penalty. Consequently, it is necessary to look further.
In the two remaining cases in which the comparative distinguishing characteristic is that a person other than a police officer was killed during the course of a robbery, Tichnell’s moral culpability was, in my view, less than that of each of the defendants who were sentenced to life imprisonment, not death. In Green, Ind. No. 18108220-22, Criminal Court of Baltimore City, filed 7-12-82, during the course of a robbery of a restaurant, the defendant and an accomplice repeatedly stabbed two people, tied one of them up, and cut both of the victims’ throats. Thus, two aggravating circumstances were present — a killing during the course of a robbery and the commission of more than one murder arising out of the same incident. Unlike Tichnell, Green had previously been found guilty of crimes of violence. 36 Nevertheless, the trial court found as a mitigating circumstance that it was unlikely that Green would engage in further criminal activity. An additional mitigating circumstance was that the defendant’s conduct was not the sole proximate cause of the two deaths.
*515 In Johnson, CT 82-377, Circuit Court for Prince George’s County, filed 12-1-82, the defendant abducted and robbed a thirteen-year-old girl. Thereater, he raped her and beat her about the head with a nunchaku. 37 After the defendant released the victim, he shot her point blank in the back. The defendant had not previously been found guilty of a crime of violence. 38 It was found that the defendant was unlikely to engage in further criminal activity. Additional mitigating circumstances included Johnson’s family background, his ability to adjust to a structured environment as evidenced by his school and Air Force experience, the fact that he gave himself up, and that he had leadership qualities that would be helpful to other inmates.
In Green and Johnson, in each of which persons other than a police officer were killed during the course of a robbery, innocent victims were arbitrarily killed in a brutal and heinous manner under circumstances in which the defendants were not threatened by immediate apprehension. It is for this reason, in my view, that, notwithstanding the various mitigating circumstances, Tichnell’s moral culpability is less than that of the defendants in these two cases, both of whom were sentenced to life imprisonment, not death.
I have carefully and conscientiously reviewed the ten cases in the majority’s inventory that I deem to be similar to this case. My examination reveals that none of the five similar cases in which the death penalty was imposed, Calhoun, Harris, Stebbing, Colvin, and White, either singly or collectively, establish that the death penalty is generally imposed throughout the State in cases in which a person who had never previously been found guilty of a crime of violence *516 kills a police officer in an attempt to evade arrest when unexpectedly threatened with apprehension during a storehouse breaking. Accordingly, these five cases are not sufficient, either singly or collectively, to justify the imposition of the death penalty in this case. As a result, the focus of my proportionality review necessarily shifts from a determination of whether in similar cases the death penalty has been generally imposed throughout the State, to whether Tichnell’s moral culpability so far exceeds that of others in similar circumstances sentenced to life imprisonment that the imposition of the death penalty is justified.
My examination of the five similar cases in which life imprisonment was imposed reveals that in three cases, Monroe, Hughes, and Porter, it is questionable whether Tichnell’s moral culpability exceeds that of the respective defendants, while in two cases, Green and Johnson, Tichnell’s moral culpability is less than that of the respective defendants.
Under these circumstances, I am not persuaded that Tichnell’s moral culpability so far exceeds that of others in similar circumstances sentenced to life imprisonment that the imposition of the death penalty in this case is justified. Thus, even if I agreed with the majority as to the scope of the relevant inventory of similar cases under § 414 (e) (4), I would not find that the death penalty imposed upn Tichnell is justified.
Ill
As a result of the majority’s exclusion of "death-eligibl¿ murder cases in which the prosecutor could have, but did not seek the death penalty” from the relevant inventory of similar cases, I am unable to determine, pursuant to § 414 (e) (4), that the sentence of death imposed upon Tichnell is excessive or disproportionate to the penalty imposed in sim *517 ilar cases, considering both the crime and the defendant. Moreover, even if I agreed with the majority’s restriction of the relevant inventory of similar cases, based upon my statutorily mandated proportionality review, I would hold that the sentence of death in this case is excessive and disproportionate. I therefore would set the sentence aside and remand for modification to life imprisonment. 39
*518 APPENDIX I
STATISTICAL SUMMARY OF RECORD IN CALHOUN V. STATE RELATING TO PROSECUTORIAL . DISCRETION IN DEATH PENALTY CASES
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. § 17-10-35 (c) provides in pertinent part:
"With regard to the sentence, the court shall determine:
"(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” (Emphasis added.)
. In order to determine a statute’s meaning, a court may consider the statute’s legislative history. Scott, 297 Md. at 246 , 465 A.2d at 1132 ; Loscomb, 291 Md. at 429 , 435 A.2d at 767 ; Department of State Planning, 288 Md. at 14 , 415 A.2d at 299 .
. Commentators have also recognized that the efficacy of proportionality review procedures depends upon the thoroughness and accuracy of *489 the review process. Hubbard, Burry, and Widener, A "Meaningful”Basis for the Death Penalty: The Practice, Constitutionality, and Justice of Capital Punishment in South Carolina, 34 S.C.L.Rev. 391, 443 (1982); Baldus, Pulaski, Woodworth, and Kyle, Identifying Comparatively Excessive Sentences of Death: A Quantitative Approach, 33 Stan.L.Rev. 1, 21 (1980-81).
. Throughout this dissenting opinion, the term "distinguishing characteristic” refers to aggravating and mitigating circumstances found by the trier of fact. See Md. Code (1957,1982 Repl.VoI., 1983 Cum.Supp.), Art. 27, § 413 (d) & (g).
. The prevailing opinion was authored by Justice White and joined by Justices Marshall, Blackmun, and Stevens. Justice Brennan filed a concurring-opinion.
. Justice O’Connor filed a dissenting opinion in which Chief Justice Burger and Justices Powell and Rehnquist joined.
. In Castell v. State, 250 Ga. 776, 793-94 , 795 n. 12, 301 S.E.2d 234, 250 , 250 n.12 (1983), the Supreme Court of Georgia in its proportionality review included two cases in which the death penalty was not sought. See Mulkey v. State, 250 Ga. 444 , 298 S.E.2d 487 (1983); Reaves v. State, 242 Ga. 542 , 250 S.E.2d 376 (1978).
. In construing a Maryland statute patterned upon the statute of another state, the judicial decisions of that state, including those rendered after the Maryland enactment, are persuasive authority. James v. Prince George’s County, 288 Md. 315, 330 , 418 A.2d 1173, 1181 (1980); St. Joseph Hospital v. Quinn, 241 Md. 371, 376 , 216 A.2d 732, 735 (1966); Zell v. Safe Deposit & Trust Co. of Baltimore, 173 Md. 518, 525 , 196 A. 298, 301-02 (1938).
. An appellate court may take judicial notice of the record in other cases before it. Dean v. State, 291 Md. 198, 203 , 434 A.2d 552, 555 (1981); Jeweler v. Potomac Electric Power Co., 217 Md. 458, 463 , 144 A.2d 66, 68 (1958). .Consequently, I take judicial notice of the record in Calhoun v. State, (No. 129, Sept. Term, 1981 & No. 5, Sept. Term, 1982), presently pending before this Court.
. See Appendix I, No. 129, Sept. Term, 1981 and No. 5, Sept. Term, 1982, Calhoun v. State, Appendix to Supplemental Brief of Appellants, Vol. I, at 1, Statistical Summary of Record in Calhoun v. State Relating to Prosecutorial Discretion in Death Penalty Cases, Percentage of Qualifying Cases in which Capital Proceedings Held.
The term "qualifying cases,” used in Appendix I refers to all death-eligible cases including not only those in which the prosecutor sought the death penalty, but also those in which he did not.
. See Appendix I, Capital Proceedings Held, Death Imposed.
. See Appendix I, Percentage of Qualifying Cases in which Capital Proceedings Held.
. See Appendix I, Percentage of Qualifying Cases in which Death was Imposed.
. The prevailing opinions in both Gregg and Proffttt were joined by Justices Stewart, Powell, and Stevens. Chief Justice Burger and Justices White and Rehnquist, in a separate opinion, concurred in the judgments of the Court. Justice Blackmun separately concurred in the judgments of the Court. Justices Brennan and Marshall each separately dissented.
. See Appendix I, Percentage of Qualifying Cases in which Capital Proceedings Held.
. See No. 129, Sept. Term, 1981 and No. 5, Sept. Term, 1982 Calhoun v. State, Joint Record Extract, Vol. IV.
. A construction of a statute, giving rise to doubts as to its constitutionality, should be avoided. Davis v. State, 294 Md. 370, 377 , 451 A.2d 107, 111 (1982); Baltimore County v. Missouri Realty, Inc., 219 Md. 155, 159 , 148 A.2d 424, 427 (1959); Barrett v. Clark, 189 Md. 116, 127 , 54 A.2d 128, 133 (1947).
. See State v. Harris, Criminal Case No. 75400, Circuit Court for Baltimore County, filed 9-6-83; State v. Monroe, Criminal No. 26242, Circuit Court for Montgomery County, filed 12-9-82; State v. Johnson, CT 82-377, Circuit Court for Prince George’s County, filed 12-1-82; State v. Green, Ind. No. 18108220-22, Criminal Court for Baltimore City, filed 7-12-82; State v. White, Criminal No. 75226, Circuit Court for Baltimore County, filed 5-19-82; State v. Hughes, Criminal No. 25917, Circuit Court for Montgomery County, filed 4-13-82; State v. Calhoun, Criminal No. 26250, Circuit Court for Montgomery County, filed 12-21-81; State v. Colvin, Criminal No. 25,349, Circuit Court for Anne Arundel County, filed 9-30-81; State v. Stebbing, Criminal Case No. 7681, Circuit Court for Harford County, filed 6-2-81; State v. Porter, Criminal No. 22,551, Circuit Court for Anne Arundel County, filed 1-2-81.
Unless otherwise expressly indicated, throughout this dissenting opinion citations to cases in the inventory refer to the Reports of Trial Judges, filed in this Court. See Appendix A to the majority opinion.
. See Calhoun, Monroe, and Hughes.
. Art. 27, § 413 (g) (1) establishes as a mitigating circumstance that the defendant has not previously been found guilty of a crime of violence. This section provides in pertinent part:
"As used in this paragraph, 'crime of violence’ means abduction, arson, escape, kidnapping, manslaughter, except involuntary manslaughter, mayhem, murder, robbery, or rape or sexual offense in the first or second degree, or an attempt to commit any of these offenses, or the use of a handgun in the commission of a felony or another crime of violence.”
Throughout this dissenting opinion, the phrase "crime of violence” is defined as it is in § 413 (g) (1).
The record additionally shows that Tichnell had not previously been found guilty of any other crime. Moreover, the record shows that Tichnell had been married, had a dependent child, had served in the military for several years, and had been employed at a steel mill until approximately one year before the crime. Although none of these characteristics were found to be mitigating circumstances in Tichnell, some of them were found to be mitigating circumstances in another case in the inventory. See Monroe.
. One of the grounds in Calhoun’s pending appeal is that during the sentencing proceeding the jury look impermissible considerations into account in determining whether to impose the death penalty.
*506 It should be noted that until the instant case, this Court has not upheld a challenged death penalty in any of the nine consecutive cases decided since the enactment of Art. 27, §§ 413-415. See Scott v. State, 297 Md. 235 , 465 A.2d 1126 (1983); Foster v. State, 297 Md. 191 , 464 A.2d 986 (1983); Harris v. State, 295 Md. 329 , 455 A.2d 979 (1983); Poole v. State, 295 Md. 167 , 453 A.2d 1218 (1983); Huffington v. State, 295 Md. 1 , 452 A.2d 1211 (1982); Johnson v. State, 292 Md. 405 , 439 A.2d 542 (1982); Poole v. State, 290 Md. 114 , 428 A.2d 434 (1981); Tichnell v. State, 290 Md. 43 , 427 A.2d 991 (1981); Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980).
Similarly, the United States Supreme Court has upheld only one challenged death penalty in fourteen of the fifteen cases decided since Gregg . See Enmund, 458 U.S. at 811 n.23, 102 S.Ct. at 3384 n.23 (1982) (O’Connor, J., dissenting). The death penalty was not upheld in Enmund, 458 U.S. at 782 , 102 S.Ct. at 3368 ; Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 (1982); Estelle v. Smith, 451 U.S. 454 , 101 S.Ct. 1866 (1981); Bullington v. Missouri, 451 U.S. 430 , 101 S.Ct. 1852 (1981); Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 (1980); Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382 (1980); Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 (1980) (plurality opinion); Green v. Georgia, 442 U.S. 95 , 99 S.Ct. 2150 (1979) (per curiam); Bell v. Ohio, 438 U.S. 637 , 98 S.Ct. 2977 (1978) (plurality opinion); Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 (1978) (plurality opinion); Coker v. Georgia, 433 U.S. 584 , 97 S.Ct. 2861 (1977) (plurality opinion); Roberts v. Louisiana, 431 U.S. 633 , 97 S.Ct. 1993 (1977) (per curiam); Gardner v. Florida, 430 U.S. 349 , 97 S.Ct. 1197 (1977) (plurality opinion); Davis v. Georgia, 429 U.S. 122 , 97 S.Ct. 399 (1977) (per curiam). The death penalty was upheld in Dobbert v. Florida, 432 U.S. 282 , 97 S.Ct. 2290 (1977).
. In Calhoun the jury found:
"that a substantial mitigating factor is the defendant’s background, which has been such that he has never been integrated into society. Therefore, he has been and is unable to conform with its norms and moral values.”
. Calhoun was convicted of armed robbery in 1971; armed robbery in 1972; armed robbery in 1978; and two armed robberies in 1979.
Additionally, the record shows that Calhoun, unlike Tichnell, had never served in the military and had no dependent children.
. Section 293 (a), with respect to certain crimes involving controlled dangerous substances, provides:
"Any person convicted of any offense under this subheading is, if the offense is a second or subsequent offense, punishable by a term of imprisonment twice that otherwise authorized, by twice the fine otherwise authorized, or by both.” (Emphasis added.)
Section 366 provides for enhanced punishment for recidivists with respect to crimes relating to lotteries. Section 558 provides enhanced punishment for recidivists with respect to certain crimes relating to theft. Section 643B provides for enhanced punishment for recidivists with respect to crimes of violence.
. Even if the Sails case were considered, I would find that while Tichnell’s moral culpability was greater than that of Sails, it is questionable whether Tichnell’s moral culpability so far exceeds that of Sails that the imposition of the death penalty is justified.
. This is the first case in which this Court has engaged in proportionality review. In view of the limited number of cases available for comparison in which a police officer was killed, I agree with the majority that it is necessary to compare the Tichnell case to cases in which the comparative distinguishing characteristic is that an individual other than a police officer was killed during the course of a robbery. It is possible that at some future time the inventory of cases in which the distinguishing characteristic is that a police officer was killed will unfortunately be larger. Thus, there may come a time when comparisons to cases such as Tiehnell’s may appropriately be limited to cases in which the distinguishing characteristic is that a police officer was killed.
. In three of the eight cases, the judgment of the trial court was reversed. Foster v. State, 297 Md. 191 , 464 A.2d 986 (1983); Huffington v. State, 295 Md. 1 , 452 A.2d 1211 (1982); Poole v. State, 290 Md. 114 , 428 A.2d 434 (1981). In three others, the death penalty was vacated and the case was remanded for a new sentencing proceeding. Scott v. State, 297 Md. 235 , 465 A.2d 1126 (1983); Harris v. State, 295 Md. 329 , 455 A.2d 979 (1983); Poole v. State, 295 Md. 167 , 453 A.2d 1218 (1983). One case was remanded to the trial court with directions to vacate the conviction and sentence and dismiss the indictment. Thomas v. State, 294 Md. 625 , 451 A.2d 929 (1982). In the remaining case, the death sentence was vacated by the trial court and a new sentencing proceeding is pending. State v. Johnson, Criminal No. 8796, Circuit Court for Harford County, filed 5-5-83.
. Monroe was previously convicted of robbery.
. These two distinguishing characteristics were present in Tichnell’s case but were not found to be mitigating circumstances.
. Harris was convicted of robbery in 1977.
. Colvin was convicted of robbery with a deadly weapon in 1972.
The record additionally shows that Colvin was convicted of six burglaries in 1960; burglary in 1962; larceny in 1964; burglary in 1964; storehouse breaking in 1969; two assaults in 1973; larceny in 1973; and burglary in 1981. Additionally, the record shows that Colvin had not served in the military.
. I recognize that in Stebbing the robbery was incidental to the rape. Nevertheless, in this first exercise of proportionality review, caution requires that Stebbing be included because it contains the comparative distinguishing characteristic that a person other than a police officer was killed during the course of a robbery.
. The record additionally shows that Stebbing was convicted of larceny in 1979.
. In four of these cases, the mitigating circumstance of substantially impaired capacity was found. See Allen, Criminal No. 26,323, Circuit Court for Anne Arundel County, filed 3-21-83; Johnson, Criminal No. 76415, Circuit Court for Baltimore County, filed 5-12-82; Miller, Criminal Trial 2346, Circuit Court for Allegany County, filed 12-9-81; Mayers, Criminal No. 23,921, Circuit Court for Anne Arundel County, filed 11-3-80. In one case, the robbery conviction was reversed by the Court of Special Appeals in an unreported per curiam opinion. See Quickley v. State, (No. 383, September Term, 1981, filed 17 December 1981).
. Additionally, the record shows that Porter had not served in the military.
. Green was convicted of two separate incidents of escape, one in May and one in October of 1977.
The record additionally shows that Green was convicted of burglary in 1957; receiving stolen goods in 1958; assault and three larcenies in 1959; three larcenies and breaking and entering in 1962; breaking and entering in 1964; burglary in 1966; possession of a deadly weapon in 1969; possession of heroin, forgery, receiving stolen goods, and unauthorized use of a vehicle in 1971; two larcenies in 1972; interstate transportation of a stolen motor vehicle in 1973; and possession of a deadly weapon in 1980.
. A nunchaku is a weapon often used in the martial arts. It "is a device consisting of two pieces wood, metal, plastic, or other like substance connected by any chain, rope, leather or other flexible material not exceeding 24 inches in length.” Md. Code (1957, 1982 Repl.Vol.), Art. 27, § 36 (b).
. The record additionally shows that Johnson was convicted of assault with a deadly weapon and possession of a prohibited weapon in 1982.
. In light of this conclusion, I need not consider the other issues addressed in the majority opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748265. Public record. Not legal advice.