Appendix — Tichnell v. Maryland

83-6346

CLERK

Office - Supreme Cour

FILED

MAR 1 1984

ALEXANDER L. STEVAS,

—

Misc. Ne.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

RICHARD DANNY TICHNELL

and

JAMES ARTHUR CALHOUN,

Petitioners

Ve

STATE OF MARYLAND,

Respondent

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

Of Counsel:

Gary W. Christopher

Assistant Public Defender

222 East Baltimore Street

Baltimore, Maryland 21202

(301) 659-4840

George E. Burns, Jr.

Assistant Public Defender

222 East Baltimore Street

Baltimore, Maryland 21202

(301) 659-4842

Counsel for Petitioner

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

PICHARD DANNY TICHNELL,

and

JAMES ARTHUR CALHOUN,

Petitioners

STATE OF MARYLAND,

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

APPENDICES

APPENDIX A

Opinion of the Court of Appeals of Maryland in

Tichnell v. State, 287 Md. 694, 415 A.2d 830

(1980), filed on June 10, 1980 ..... Co ccccccensscces A.l

APPENDIX B

Opinion of the Court of Appeals of Maryland in

Tichnell v. State, 290 Md. 43, 427 A.2d 991

(1981), filed on April 6, 1981 ..cccrecccccccccccccce B.l

APPENDIX C

|| Opinion of the Court of Appeals of Maryland in

Tichnell v. State, 297 Md. 432, A.2d

| (1983), filed on November 3, 1983 ..ccccccecececvese C.l

|

| APPENDIX D

Order of the Court of Appeals of Maryland denying

motion for rehearing in Tichnell v. State, 297

Md. 432, __- A.2d ___ss (1983), filed on December

Sy 1983S cccccccccccccccccccccccscccccccscsccsccccsecs D.1

|

|

Order of Honorable Warren E. urger, Chief Justice

of the United States, extending Time to File

Petition for Writ of Certiorari To and Including

March 4, 1984 e966 0-9066600O0 60006000 EOs bs eee eee seceees Ral

& APPENDIX F

Opinion of the Court of Appeals of Maryland in

Calhoun v. State, 297 Md. 563, A.2d

— comes

} é < ~ 3 Alc, 7 102

(1983), filed on November 21, 1983 Seeoseecesccscesosce Fel

APPENDIX G

Order of the Court of Appeals of Maryland denying

motion for rehearing in Calhoun v. State. 297 Md.

563, A.2d (1983), filed on December ae

—_— — —_-—_—_—_-—

1983 ite ee LAE TL a ee ee ee eee Gee

APPENDIX H

Order of Honorable Warren E. Burger, Chief Justice

of the United States, extending Time to File

Petition for Writ of Certiorari To and Including

March 4, 1984 PPOSSMOCHACH CRC OSDEDED REO DR ODED ecbeeeee Mel

-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 198 3

—_—

RICHARD DANNY TICHNELL

and

JAMES ARTHUR CALHOUN,

Petitioners

STATE OF MARYLAND,

Respondent

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

APPENDIX A

Opinion of the Court of Appeals of Maryland in

Tichnell v. State, 287 Md. 694, 415 A.2d 830

(1980), filed on June 10, 1980 woseseeeeeeeeeeeees

©

we

RICHARD DANNY TICHNELL v. STATE OF

MARYLAND

wy -

Nos. 72 and 104, Seotemoer Term. 1979!

CaiminaL Law — Multiple Offenses — Joinder For Tai — Muinpie

Offenses Mav Be Tried Together Where They Are Sased Un Same Act Or

Transaction Or On Connected Acts Or Transactions Or Constitutung A

Common Scheme Or Plan — Maryiand 2uiles 712 a. 745 a. Where three

indictments charged detendant with storenouse breaking, grand larceny of

handguns. first degree murder, felony murder anc related crmes, and ith

robbery of police officer with a deadly weapon, grand larceny of a poiice

cruiser and handgun violations, and where ail of the alleged offenses

occurred within a fifteen minute permod in a ughtly confined area, the Court

heid that the triai judge did not abuse tus discretion in consolidating the

indictments for trial. In the Court's view, joinaer was proper under

Maryland Rule 745 a because ail of the offenses charged were related and

were “based on the same act or transaction or on two or more acts or

transactions connected together ....” pp. 709-713

Aprra, — Failure To Raise lesue Beiow — Ordinarily, Appeilate Court

Will Not Consider Issues Which Appellant Failed To Raise At Trial —

Alleged Pre‘udicial Removal Of Cnminai Case For Trial In Another County

Will Not Be Considered On Appeai Where Apoeilant Made No Chrection To

Removal in Lower Court — Maryiand Rule 335. pp. 713-714

Constrrutionas Law — Trial By Jury — Maryland Deciaration Of Rights

Guarantees Trial By Impartial Jury — But Derendant Does Not Have Right

To Be Tried By Any Particuiar Jury Or Jurors — Removal Of Cnmuinai

Case From Garret: County To Wicomico County For Jury Trial Did Not

Deprive Defendant Of Triai By Jury Of His Peers — Marviand Declaration

Of Rights, Articies 21, 24. >. 714

Crmiuna Law — Instructions to Jury — Failure To Object To

Instructions Preciudes Review As Of Right — Maryiand Rule 757 — But

Appeilate Court May Review Instructions Which Are Plainly Erroneous —

No Plain Error in Tria/ Court’s [nscructions On State's Burcen Of Proof Cn

Defendant's Claim Of Self-Defense. In the instant case, the ‘ury was

instructed: "The State has the burden of proving ... every fact necessary *o

convict the defendant cf the crimes w'th which he is charged. This burden

remains with the State throughout t..: trial. The defendant does not have

the burden of proving fis innocence or smcucing any ev:dence.” The Cour

herd that this instruction was not clainmiy erroneous on tne Scate 3 Ourden

{ proot pertaining to tne Jefendant’s ciaim 2 se.f-derense ep. 7id-ri§

Evrpencs — Objection To Admissibility — Waiver Of Objection — Party

Mav Waive Objection To Admussidiiity Of Evidence 3y Ailowing Similar

Evidence To Be Admitted Without Objection Or Sv Giving Testimory

Which Conatirms Evicence To Which Chrect:ion Was Made — “larviana

Rule 522 2d 2. Where defendant in cmmunal trai od:ected *o testimony >

witness tending to show tha: cefencant had committed other cmmes during

flignt after cmmes with which he was charged. out where

defendant did not thereafter object to the introduction of his statements

police which recounted the cmmes committed dumng ‘light. and where

defendant's own testimony confirmed the statements he had mace to police,

the Court held that the defendant nad waived his objection to the contested

evidence and its admission was not reversidie error. Mary:and Rue Slo sf

pp. 715-715

Murper — First Degree — Sufficiency Cf Evidence — Record Evidence

Must Reasonably Support Finding Cf Guilt Beyond Reasonabie Doudt.

Where the evidence adduced at trial proviced ampie basis for the jury to

find that defendant had a specific purpose and intent to lull. had full

conscious knowledge of the purpose to kil] and that the design % kill

preceded the killing by an appreciable length of time; and where the jury

could have reasonably conciuded from the evidence that the defendant did

not kill in self-defense, the Court he/d that there was sufficient evidence,

undar the test of Jackson v. Virginia, 443 U.S. 307, 99S. Ct. 2781, 61 L. Ec

2d 560 (1979) to convict the defendant of first degree murder of poiice

officer. ep. 717-720

ConstrruTionaL Law — Camauvar Law — Death Penalty Statute Heid

Feeiaily Constitutional — Code (1957, 1976 Repi. Voi., 1979 Cam. Supp.)

Art. 27, $§ 412-4:4; Maryiand Rule 772A. Reviewing the history and

provisions of Maryland's “death penaity” statute, enacted in 1978, the

Court held the statute constitutional under the Eighth Amendment of the

U. S. Constitution and under Article 25 of the Marviand Deciaration of

Rights. This legislation is not a mandatory death penalty statute. [t allows

for a broad consideration of mitigating arcumstances, and provides clear

guides and standards to the sentencing authority. Moreover, the statute

incorporates safeguards against arbitrariness through an expedited

automatic appeal of ail death sentences to the Court of Appeais.

pp. 729-729

Cama Law — Death Penalty — Burdens Of Proof — Statute Requires

Sentencing Authority To Find Beyond Reasonable Doubt That State Has

Proved At Least One Aggravating Circumstance — Accused Then Has

695} Syllaous

Burden Of Production And Proof That Mitigat:ng Circumstances) Exist —

Death Sentence Must 3e imposed Unvess Sentencing Authomty Fings By A

Preponderance Of Evidence That Mitigating Circumstances Outwergh

Aggravating Circumstances, And State Has 2isk of Nonpersuasion On This

Isgu:a — Code: 1957. 1976 Repl. Vai., i979 Cam. Supp.) Art. 27, 23 41310. 12).

bd 12). pp. 729-734

Comstrrutionat Law — Cuiminat Law — Marviand’s Death Penaitv

Statute — Due Process Does Not Require State To Assume Surden Cr

Proving Bevond Reasonabie Douct Acsence Cf Mitigating Circumstances

Or Of Proving Beyond Reasonabie Doubt That Aggravating Circumstances

Outweigh Mitigating Circumstances — Code (1957, 1976 Repi. Vol., 1979

Cum. Supp.) Art. 27, § 413 sp. 729-734

ConstrruTionat Law — Carmina Law — Ex Post Facto Laws — Detir xd

As Statute Which Punishes As A Crome An Act freviously Committed

Which Was Innocent When Done — Or Which Increases Punishment For

Crime Afer [ts Commission — Or Which Deprives Derendant Of Defense

Available At Time Act Was Commitzed — Procedural And Ameiiorative

Change ln Death Penaity Statute Is Not An Ex Post Facto Law — Marviard

Deciaration Of Rights, Article 17. Where Maryiand death penalty statute

was amended after defendant's offenses, but before his trial, to increase a

defendant's safeguards by directing the sentencing authority * consider,

“any other facts which the jury or the court specifically sets forth in writing

that it finds as mitigating circumstances in the case”, the Court heid that

such procedural and ameliorative amendment was not an ex post facto law

and did not violate Article 17 of the Maryland Declaration of Rights or the

ex post facto clause of the federal Constitution. Code (1957, 1976 Repl. Vol.,

1979 Cum. Supp.) Art. 27, $ 413 (g) ‘8). pp. 734-737

CowstrruTionaL Law — Death Penaity Statute — Claim That Article 23

Of Maryland Declaration Of Rights Vests Jury With Power To Disregard

Statutory Sentencing Criteria Not Presented Where Defendant Elected To

Have Judge Make Sentencing Determination — Code (1957, 1976 Repl.

Vol., 1979 Cum. Supp.) Art. 27, § 413; Marviaad Ruie 757b. op. 737-738

CruminaL Law — Death Penalty Statute — Judicial Review Of Death

Sentence Lmposed Under Influence Of Arbitrary Factor — Case Remanded

For New Sentencing Proceeding — Code ‘1957, 1976 Repl. Vol., 1979 Cum.

Supp.) Art. 27, § 414 (e) (1). Where it appeared that defendant selected trial

judge as sentencing authority racher than jury because defendant was

prejudicially misied to believe that the judge would not impose the death

sentence if he were the sentencing authority, the Court he/d that the

imposition of the death penalty was influenced by an “arbitrary factor”,

justifying a new sentencing proceeding. Code (1957, 1976 Repl. Vol., 1979

Cum. Supp.) Art. 27, $$ 414 (e) (1), 413. pp. 738-745

J. ALA.

A. 8

598 TICHNELL v. STATE

Opinion of the Court 2387 Ma.

Review of Sentence of Deata and Appeal from ne Circuit

Court for Wicomico County (Poturrr, J.).

Richard Danny Tichneil was found guilty by a jury of first

degree murcer, grand larceny and storenouse 2re2king.

Tichnell waived his statutory right to a jury determinasion

of whether he should be sentenced to death on :ne murder

conviction, and the court imposed the death sentence as weil

as terms of imprisonment for the other crimes. From those

convictions and sentences, Tichnell exercised his airect

statutory appeal to the Court of Appeals.

Judgments affirmed, except as to the imposition of the

death sentence. Death sentence vacated, and case remanced

to the Cireuit Court for Wicomico County for a new

sentencing proceeding under Article 27, $ 413. Each party

to pay own costs.

The cause was argued before Mureuy, C. J., and SMrrH,

Dicces, Exprince, Core, Davipson and Ropowsky, JJ.

~

Clark B. Frame, with whom was G. Gary Hanna on the

brief, for appeilant.

George E. Burns, Jr., Assistant Public Defender, with

whom were Alan H. Murrell, Public Defender, and Thomas

J. Saunders, Assistant Public Defender, on the brief, for the

Office of the Public Defender as amicus curiae.

Stephen H. Sachs, Attorney General, and Deborah &.

Handel, Assistant Attorney General, for appellee.

Murpuy, C. J., delivered the opinion of the Court. Cove

and Davipson, JJ., concur in the result and filed concurring

opinions at page 745 infra.

In the early morning hours of January 18, 1979, Richard

Tichne!l and a confederate, Osear Recek, broke into

Davidson’s Army-Navy Surplus Store near Oakland,

Garrett County, Maryland, and stole ten handguns. Withi

ditmMioteens. ¢ eo .

FY ICHN ELL v : c 599

095; Jeinion of the Court

minutes after leaving the store, Tichneil was accosted by

Deputy Sheritf David Livengood, who had been dispatched

to the scene in response to a silent alarm activated by the

storehouse breaking. In the course of their encounter,

Tichnell shot and killed the deputy. Thereafter. Recek and

Tichnell took Deputy Livengood’s police cruiser and ‘led the

scene. They were apprehended later that morning in West

Virginia. At that time Tichnell admitted to the police that he

had shot Deputy Livengood, but he said the shooting was not

premeditated and was in justifiable self-defense.

On March 2, 1979, the grand jury of Garrett County

charged Tichnell in one indictment with the felonious

storehouse breaking of Davidson's store, and with grand

larceny of the ten handguns.' Another indictment charged

Tichnell with the premeditated first degree murder of

Deputy Livengood, with felony murder, with murder in the

second degree, with manslaughter, and with using a

handgun in the commission of a crime of violence.” A third

indictment charged Tichnell with robbing Deputy |

Livengood with a deadly weapon and stealing his vehicle,

with grand larceny of the deputy’s police cruiser, and with a

handgun violation.

Upon Tichnell’s request for a change of venue, the cases

were removed to the Circuit Court for Wicomico County. The

three indictments were consolidated for trial by jury before

Judge Richard M. Pollitt. Pursuant to Maryland Code (1957,

1976 Repl. Vol., 1979 Cum. Supp.), Art. 27, $412 (b),

Tichnell was given timely notice that the State would seek

the imposition of the death sentence for the murder of the |

deputy sheriff.

At the conclusion of the trial on August 23, 1979, the jury

found Tichnell guiity of the wilful, deliberate and

1. The storehouse breaking count was based on Maryland Code (1957,

1976 Vol.), Art. 27, § 32 — breaking a storehouse with intent to steai |

the value of $100 or more.

2 Code, Art. 27, § 407 provides that murder perpetrated “by any kind of

wilful, deliberate and premeditated killing shall be murder in the first |

.” Section 410 provides that murder committed in the perpetration,

or attempted perpetration, of a felonious storehouse breaking or robbery

shail constitute murder in the first degree.

AS |

o

i aeons s . oraee

700 MiCrNeik © STATE

"

'

as

a

fa

Dinion of the Court Bt

premeditated murder af Deputy Livengood. [t aiso found fim

guilty of storehouse breaking, grand larceny of the zuns. and

unauthorized use of the deputy’s vehicle. Arter Tichnell

waived his statutory right to have ajury determine whether

he should be sentenced to death on the murder conviction

‘see Code, Art. 27, 3413), the court imposed the death

sentence. Additionaily, it imposed terms of imomsonment for

the storehouse breaking and grand larceny offenses.

On appeal, Tichneil claims that the court committed

numerous prejudicial errors in the course of the pretriai and

trial proceedings. He contends that the evider.ce was legally

insufficient to permit the jury to convict him of wilfui,

deliberate and premeditated murder. He also attacks the

constitutionaiity of Maryland’s capital sentencing statute,

as weil as the imposition of the death sentence in the

circumstances of the case.

L

At the trial, the State adduced evidence that on January

18, 1979, at approximately 5:25 a.m. an alarm sounded in

the Garrett County Central Alarm office, indicating that a

break-in had occurred at Davidson's store located on the

outskirts of Oakland. Deputy Livengood was immediately

notified and drove to the store, accompanied by Sarge. his

108-pound German Shepherd K-9 dog. Officer Roger Lewis

of the Oakland Police Department was aiso alerted, and he

too drove to the scene. ;

The evidence showed that Davidson's store is located

between Routes 219 and 4, being approximately equidistant

to each road. The two routes parailel each other in a

north-south direction. The front of the store is on the Route

219 side. Route 4 is a two-lane road; it is approximately 252

feet from the rear of the store. There is no automobile

entrance to the store from Route 4.

Officer Lewis arrived in the front of the store at

approximately 5:27 a.m. It was quite windy and light snow

was falling; ice and snow covered the ground. Lewis noted

595) Yoinion of tne Court

that the front door of the store had been oroken open, and a

minute or so later he entered the store. Sometime between

5:28 a.m. and 5:31 a.m. Deputy Livengood contacted Oiticer

Lewis dy police radio, advising him that he was proceeding to

investigate a “suspect vehicle.” He toid Lewis to remain in

his car in front of the store.

Between 5:30 and 5:35 a.m.. James Woife. whose house

overlooks Route 4 immediately behind Davidson's store. was

leaving for work when he heard some velling on the road.

From a distance of approximately 460 feet, he observed a car,

facing north, stopped on Route 4 with its headlights on, and

a dog pacing tack and forth in front cf the headlights. After

about ten seconds the dog disappeared, and fifteen seconds

later Wolfe heard a burst of shots, followed by a split second

pause, the sound of tires spinning and a simuitaneous

second burst of shots. Wo!fe then saw a faint vision of a

second car, without headlights, move in a southerly

direction on Route 4 about twenty to thirty feet, after which

he heard a “thump.” Wolfe went into his house and called

the sheriff's office; the time was then about 5:37 a.m. A few

minutes later, Wolfe noticed the vehicle with the headlights

leave the area. At 5:50 a.m., Wolfe drove on Route 4 behind

Davidson’s store and observed Deputy Livengood iying

facedown at the edge of the northbound lane of the road.

Wolfe promptly notified the sheriff's office and Officer Lewis

and others immediately responded to the scene.”

Deputy Livengood had been shot seven times and was

dead. His 38 caliber service revoiver with three live and

three spent cartridges was located beneath his body. A pair

of handcutfs was found in the road about twenty-three feet

from the deputy’s body. Livengood’s police cruiser was

missing. His K-9 dog, Sarge, had been stabbed in the lett

shoulder region and his tongue had been deeply cut. The dog

was lying off the road about twenty-six feet from the

deputy’s body when the investigating officers arrived at the

scene; the dog died shortly thereafter. A i965 Plymouth,

3. In accordance with Livengood’s instructions. Lewis had remained in

his poiice car in front of the store. He did not hear the shooting.

- hems ee

Opinion of the Court 287 Ma.

later identified as belonging to Tichneil, was observed

partially off Route 4 in a snow-fiiled ditch, lodged against a

wire fence and post; the vehicle was facing south,

approximately forty feet from the deputy’s body. The r:ght

passenger window was open. Two bullet heles were

observed in Tichneil’s car. One shot had struck the left front

door of the vehicie near the door lock; the other hit the lett

front area of the doorpost. A 9 millimeter Browning

semiautomatic revoiver, later identified as the homicide

weapon, and owned by Tichneil. was found on the front seat

of his car. The gun contained seven empty sheils and seven

loaded cartridges; two of the spent cartridges were found on

the floor of Tichnell’s car behind the driver's seat; the other

five casings were scattered about Route 4 in a cluster near

the deputy’s bedy. A fully loaded Smith and Wesson 28

revolver that had been stolen from Davidson's store three

days eariier was also recovered from a field near the store

close to Route 4.

At approximately 5:45 am. on the morning of the

shooting, at a point about six miles from Oakland, Jerry

Wilson saw a speeding car run a stop sign, hit a guard rail

and go over an embankment. Two men ran irom the vehicle,

which was later identified as Deputy Livengood’s police

cruiser. At about 6 a.m., two armed men gained entry into

the residence of Clifford Friend, which was located about 500

yards from the wrecked police cruiser. According to the

testimony of Friend’s twenty-year-old son, Cari, one of the

men, who had a shoulder wound and was wearing a ski

mask, said that he had “just shot and killed a feliow.” Carl

testified that the men demanded the keys to his car, tied up

the four members of the family, ripped out the telephone

wires, took $20 from him, a camera and a hat, and departed

driving his 1978 Camaro. The Friends reported the incident

to the police, including the make and license number of

Cari’s car. 1;

At approximately 9:30 a.m. that morning, West Virginia

State Police Troopers observed Tichneil and Recek driving

Cari Friend’s car, and they arrested the two men. Among

Se rae . ms Pes

TICHNELL v. STATE 103

595 (epinion of the Court

other items removed from the car were a Dag containing the

handguns stolen from Davidson's and a samurai sword

with dog biood and dog hair on it. The bag aiso contained a

shoulder holster capable of accommodating a 92 millimeter

Browning semiautomatic; it was stained with dicod of a tyne

matching Tichneil’s. The troopers observed that Tichne!!

had a gun shot wound in his right shouider. 2 one and

one-half inch laceration over his right eye, and a crushed

tooth.

On the day of his arrest, after he had been treated for his

wounds, Tichnell gave the police two statements, doth of

which were admitted into evidence without objection as to

their voluntariness. In the statements, Tichneil said that on

the night of January 17, 1979, he and Recek, a casual

acquaintance, had been drinking ‘ogether in Fairmont,

West Virginia. Tichneil said he was a little intoxicated

because between the hours of 11 p.m. on January 17 and 3:30

a.m. on January 18, he had consumed six to eight beers at

one place, four to five Black Russians at a second place, and

used 1/6 of an ounce of marijuana. Tichneil told Recek that

he had broken into Davidson's store on January 15, 1979 and

had taken a .38 Smith and Wesson gun. The two men decided

to return to Davidson’s that night to steal more guns, and

they drove to Oakland in Tichne!!’s car. Tichneil parked the

car in a driveway beside a barn located behind Davidson's.

They broke the lock on the front door of the store, entered

and broke into a handgun showcase at the rear of the store,

removing some handguns. After being in the store for about

three to five minutes, Tichnell said that they left through

the front door and walked back to the car. Recek then

discovered that he had lost the loaded gun which he had been

carrying. Because it was the same weapon that Tichneil had

stolen from Davidson’s on January 15, and had given to

Recek that night, Tichnell told Recek to go back and find it.

Rather than risk detection, Tichnell said he drove about the

Oakland area to give Recek time to find the lost gun. As he

was returning to the store, driving on Route 219, he observed

what he thought were two police cruisers in front of the

store. He proceeded past the store on to Route 4, southbound,

a acs

‘04 TICHNEE

237 Md

—~ - “.

/DINION WU "He + irt

in order to pick up Recek behind the store. As Tichneil

approached the rear of the store on Route 4. he saw a poiice

cruiser facing north, diocking his iane. At this precise

moment, Tichneil said that his car headlights, which had

been defective for some time, went out. He observed that an

officer, gun tn hand, had apprehended Recex and had him

lying on the ground. Tichneil said he stopped his car about

fifteen to twenty teet from the police car and got out to repair

his headlights. At this time, the olficer pointed his weapon

at him and tcld him to lie down on the road. Tichneil

complied and he heard the deputy order his K-9 dog to watch

him. The dog stood over Tichneil and as he looked up the cog

bit him on the side of his eve and through the inside of his

mouth. Tichneil said that he screamed out with pain,

became hysterical, and started running around in a circle to

avoid the dog. Believing that the dog had torn his eye out,

Tichnell ran to his car to get a medical aid kit which he kept

in the back seat. At this point Tichnell heard the deputy

order the dog to watch Recek; the deputy then followed

Tichnell to his car, spun him around and piaced a gun in his

face. At this time, the door on the driver’s side of Tichnell’s

two-door vehicle was open. Tichnell said he moved the

deputy’s weapon from his face and requested that the officer

permit him to tend to his wounded eye. Tichnell stated that

the deputy then put his gun against his (Tichnell’s) shoulder

and shot him from a distance of about a foot and a half.

Tichnell said that the shot knocked him into his car and that

he grabbed the barrel of the deputy’s gun as he feil. Tichnell

said that the deputy then tried to bring his gun down for

another shot. While still holding the deputy’s gun. Tichnell

said he reached for his own gun which he kept under the

front seat of his car. As the scuffle continued, the deputy

fired again, the bullet narrowly missing the top of Tichnell’s

head. Tichnell stated that because he thought the deputy

was going to shoot him again, he fired four or five shots at

the deputy at point-blank range. He said that the first shot

struck the deputy in the head, and he was certain that he

was dead.

Tichnell acknowledged in his statements that he and

A. 10

59

he,

wu

Recek attempted to leave the scene in Tichneil’s car. After

moving about thirty or forty feet, Tichneil said that the car

siid on the ice and went off the road into a ditch. Reaiizing

that his car was stuck, Tichnell decided to take the deputy’s

cruiser, but found the dog sitting in the front seat. As Recek

attempted to get in the open door of the car, the dog lunged

at him. Tichnell thereupon removed his samurai sword from

his car and stabbed the dog behind its left shoulder; when he

withdrew the sword, the dog roiled out of the car. Tichnell

said that he and Recek then fled in the deputy’s cruiser but

subsequentiy wrecked it. Thereafter, he and Recek gained

entrance to a nearby house, tied up the four members of the

family and took their car. Before departing, Tichnell

acknowledged telling one member of the family that he had

gotten into a “skirmish” with a police officer and had to kill

him. Tichnell said he was wearing a ski mask when he first

entered the Friend home for the purpose of covering his

bleeding face. He said he thereafter took the mask off and

showed his face to the Friend family.

Other evidence adduced by the State showed that of the

seven shots fired into the deputy’s body, two were fatal, one

in the lower back and the other in the back of the head. No

powder burns were found on the clothing or upon the wounds

of either Tichnell or the deputy. Expert testimony revealed

that had the shots been fired at a range less than three feet,

as Tichnell claimed, burned powder residue would have been

found on the clothing cr wounds of both the deputy and

Tichnell. The expert witnesses conciuded that the shots were

fired at a distance greater than three feet.

There was evidence that Tichnell’s blood type was found

on broken glass fragments from the windshield of the

deputy’s car, suggesting that the laceration over Tichnell’s

eye may have been received at the time the car was wrecked

near the Friend home. Except for Tichnell’s statements,

there was no evidence that the laceration was caused by a

dog bite.

Testimony was received from First Sergeant John Dobb,

who was in charge of training K-9 dogs for the Maryland

State Police. He expiained that a K-9 dog is trained to break

A. 14

-“A9 TICTIAT t ory Tt

706 TICHNELL v. STATE

2) f° = rt [38 {¢

JDInION of the Cvurt ao iG.

any prior command and to attack any person who is

attacking his handler. Sgt. Dobb. who trained Sarge. said

that the dog was outstanding in attack and handier

protection work. This evidence was produced <o refute

Tichnell’s statement that Sarge continued to watch Recek

throughout the entire encounter with Deruty Livengood.

Evidence was also adduced by the State showing that

Tichneil’s shouider holster, which was recovered from Car!

Friend’s car at the time of Tichnell’s arrest. was stained with

blood. From this evidence, the prosecution sought to

estabiish that Tichnell was wearing the holster at the time

he was shot in the shoulder and was carrying the murder

confederate Recexk.

The prosecution introduced evidence intended to refute

Tichne!l’s claim that he drove about Oakland while he was

waiting for Recek to find the lost gun. This evidence tended

to show that, in view of the time involved between the °

break-in at the store, and the shooting of the deputy,

Tichnell could not have traversed the route around Oakland

which he said he had taken.

Also introduced into evidence was Ticknell’s medical aid

kit. Unlike the stolen guns, and the samurai sword, the kit

had been left behind in Tichnell’s car when he and Recek fled

from the crime scene in the deputy’s police cruiser.

Tichnell testified in his own behalf. He said that he was

thirty-two years of age, a high school graduate, married with

one child, had no criminal record, and collected weapons as

a hobby. He had been a paramedic in the Army for several

years and had worked at a steel mill as a laborer. He had

been unemploved for over two years immediately prior to the

shooting. In his testimony, Tichnell said that when the

deputy first accosted him on Route 4, he was made to lie

down in the street at a point approximately six to ten feet in

front of his vehicle. In this position, Tichnell said he was

between his car and Livengood’s cruiser, and that the two

vehicles were about twenty feet apart. Recek was lying _

about three feet from the deputy’s cruiser and the dog was..

pacing back and forth. .

“m2? ,

595) ‘sDiNion of tre ourt

Tichneil described his actions after the dog bit him:

“I just jumped to my feet. running in a tight circie to keep

away [rom the dog, pius I was blind in both eves. [ couldn’:

see for approximately three or four minutes, until the vision

started coming back in my left eve and | cou:d see my car and

the headlights.

“At that time I made a run for my open car door to obtain

the medical aid bag in the back of the car so [ could apply a

wet bandage to my eye in case it was out, to see if there could

be anything preserved.

“At that time I was leaning into the back seat, I heard the

officer putting the dog — told him to watch Oscar — and |

heard him running towards me. This was about the same

time that [ was running. At this time I was screaming

hysterically.

“I opened the back seat to reach in. That is when he reached

across the window and spun me around. And when he spun

me around he placed his weapon in my face, and I moved it —

excuse me — I moved the weapon out of my line of vision and

asked him not to put it in my face. I put my hands back in the

air.

“At that time he fired a round into my right shoulder,

spinning me back towards the car. At this time I grabbed the

barrel of his weapon as | was failing and stuck out my left

arm to break my fail, to prevent him from shooting me

again. At this time I glanced off the seat with my hand and

fell directly upon my Browning high power.

“Struggling to get out of the car he fired another round at

me with both hands on the weapon. At this time I shoved his

weapon upward and ducked and the bullet tore through my

hair. At that time I just pulled the hammer back, and he was

coming back down with his weapon and I was coming up

with mine, and I exchanged several shots.”

Tichneil’s testimony was consistent with the statements

he had given to the police at the time of his arrest. Recek,

who was also under indictment for murder, did not testify.

A.13

708 TICHNELL v. STATE

Ooinion of the Court 237 Me.

Judge Poilitt instructed the jury, in accordance with

Tichneil’s defense, as follows:

“Lf vou believe from the evidence that on the date in

question near this Discount Store in Oakland she

detendant, Richard Tichnell. was apprehended bv

Deputy Sherif Livengood for breaking and

entering the store and had surrendered. and that

thereaiter while being guarded by the dog he was

bitten on the face and ran to his car to obtain

medical treatment, and was not attempting to

evade or resist arrest and was not attempting to

harm Deputy Sheriff Livengood, and that at that

time Officer Livengood started shooting_at the

defendant. then in such circumstances the

defendant may use whatever force is necessary to

repel the attack, and in so doing would be exercising

the right of self defense and would not be guilty of.

felonious homicide in such circumstances.

“In other words, if at the time of the shooting the

defendant had peacefully submitted to arrest and

was thereafter shot by the arresting officer while

attempting to get medical attention, then the

defendant would have a right of self defense and

could use such force as was reasonabiv necessary to

prevent ceath or serious bodily harm to himself.

"In order to apply the doctrine of self defense you

must find that the felony of storehouse breaking

was over and completed and that the defendant had

submitted to arrest, because the defense of self

defense is not available in cases of feiony murder. In

cases of felony murder the defendant is the

aggressor engaged in the commission of a felony.

i “A person may use a reasonable amount of force

| in self defense, including in some circumstances

deadly force. Lf the defendant actually believed that

he was in imminent danger of death or serious

bodily harm from which he could save himseif only

by using dead!y force against his assailant, and had

A. 14

a

fe)

on

Opinion of the Cour

reasonable grounds to so believe, then he had a

right to empiov deadly force in order to defend

himseif.”

In view of the evidence presented, the State maintained

that the shooting did not occur as Tichneil had reiated it, but

rather that Tichnell murdered the deputy in cold blood as he

was interrupted in his departure from the scene of the

storehouse breaking; consequently, the prosecution urged

that Tichnell was guilty of felony murder committed in the

course of the storehouse breaking and of wilful, deliberate

and premeditated murder.‘

The jury rejected Tichnell’s version of the shooting and

found him guilty of wilful, deliberate and premeditated first

degree murder under detailed instructions from Judge

Pollitt, to which no exceptions were taken.

(A)

Tichnell contends that Judge Pollitt committed reversible

error in consolidating the three indictments for trial over his

objection. He relies upon McKnight v. State, 230 Md. 604,

375 A.2d 551 (1977), where we delineated the three types of

prejudice to an accused that may resu!t from an improper

joinder of indictments, viz.:

“First, [the accused] may become embarrassed, or

confounded in presenting separate defenses. ...

Secondly, the jury may cumulate the evidence of the

various crimes charged and find guilt when, if the

offenses were considered separateiy, it would not do

so. At the very least, the joinder of multiple charges

may produce a latent hostility, which by itself may

cause prejudice to the defendant's case. Thirdly, the

jury may use the evidence of one of the crimes

charged, or a connected group of them, to infer a

criminal disposition on the part of the defendant

4. The State abandoned the robbery count before the jury retired to

consider its verdicts.

ae

from which he may also be found guilty of other

crimes charged.”

280 Md. at 609 (citations omittea

Tichneil argues that he was prejudiced dv the joincer of the

three indictments for reasons identical to those set torth in

McKnight and reiterated in State v. Jones, 234 Nia. 232. 295

A.2d 1182 (1979). ,

Marvland Rule 745 a provides that the court may order

two or more charging documents to Se tried together “if the

offenses ... could have been joined in a single charging

document.” Rule 712 a provides that two or more offenses

may be charged in the same charging document “if the

offenses charged are of the same or similar character or are

based on the same act or transaction or on two or more acts

or transactions connected together or constituting parts of a

common scheme or plan.” Rule 745 ¢ provides:

“If it appears that any party will be prejudiced by

the joinder for trial of counts, charging documents

or defendants, the court may, upon its own motion

or the motion of any party, order separate trials of

counts, charging documents or defendants, or grant

any other relief justice requires.”

Interpreting these rules, McKnight and Jones heid that a

.defendant charged with similar but unrelated offenses is

entitled to a severance where he establishes that the

evidence as to each offense would not be mutually

admissible at separate trials.

In seeking joinder of the indictments for trial, the

prosecution proffered that unlike McXnight the crimes

charged were related, occurred within ten or fifteen minutes

of each other, and constituted one continuous and

uninterrupted criminal transaction. In ordering the

consolidation under Rule 745 a, Judge Pollitt agreed with

the State’s position, noting in addition that to prove the

commission of a felony murder, the prosecution would have

to establish the underlying felony of either storehouse

breaking or robbery, both crimes being charged in the other

indictments joined for trial.

A. 16

TICHNELL v. STATE tbh

595) Opinion of the Court

We think the joinder was proper in this case under Rule

745 a because all the offenses charged were related and were

“based on the same act or transaction or on two or more acts

or transactions connected together... .” Rule 712 a. As the

State maintains, the offenses were so intertwined that one

could not be proved without producing evidence of the other.

McKnight involved four independent and distinct

robberies, committed in the same neighborhood, over a

one-month period. That case recognizes that where offenses,

even of a similar character, are joined for trial, under

circumstances where the evidence as *o each offense would

20t be mutually admissibie at separate trials, the prejudiciai

effect of such evidence is apt to outweigh its probative value.

Where, however, the evidence of other crimes would be

mutually admissible, joinder is within the trial court’s sound

discretion.

It is, of course, well settled that evidence of other offenses

independent of the particular crime charged is inadmissible,

unless the evidence is substantially relevant for some other

purpose than to show that the accused committed the crime

on trial because of his criminal character. Cross v. State, 282

Md. 468, 473, 386 A.2d 757 (1978); McKnight, supra, 230

Md. at 612; Ross v. State, 276 Md. 664, 669, 305 A.2d 680

(1976). The primary policy consideration underiying this

rule is that this type of evidence will prejudice the jury

against the accused because of the jury’s tendency to infer

that the accused is a “bad man” who should be punished

regardless of his guilt of the charged crime, or to infer that

he committed the charged crime due to a criminal

disposition. 1 J. Wigmore, Evidence § 57, at 454-56 (3d ed.

1940).

Some of the well-established categories of evidence outside

the ambit of the narrow rule of exclusion include evidence of

other crimes which tends to establish (1) motive, (2) intert,

(3) absence of mistake, (4) a common scheme or plan

embracing the commission of two or more crimes so reiated

to each other that proof of one tends to establish the other,

and (5) the identity of the person charged with the

A.17

Opinion of the Court te Ma

commission of a crime on trial. Other exceptions have ceen

recognized as well. See. e.g.. State v. Jones, supra, 284 Mc.

at 238; Cross v. State, supra, 282 Md. at 473-74; McKaignt,

supra, 280 Md. at 612; Ross, supra, 276 Md. at 669-79. One

such exception permits the admission of evidence of other

crimes when the severai offenses are so connected or blenced

in point of time or circumstances that they form one

transaction, and cannot be fully shown or explained without

proving the others. See. e.g., Cross, supra. 282 Md. at 474;

Bryant v. State, 207 Md. 565. 115 A.2d 502 (1953): Wood v

State, 191 Md. 658, 62 A.2d 576 (1948); Berger v. State, 179

Md. 410, 20 A.2d 146 (1941); Micchel] v. Scate, 173 Md. 579,

16 4.2d 161 11980): McCormick on Evitence § 199/22 22.

1972); 1 J. Wigmore, Evidence } 218 (3d ed. 1¥4u).

State v. Jones, supra, upon which Tichnell relies, does not

require a severance of the offenses. In that case, the

defendant was convicted of first degree murder, armed

robbery, two charges of attempted armed robbery, and two

handgun violations. At issue was whether the trial court

abused its discretion in denying the defendant’s motion for

a severance. The evidence showed that the defendant and

several others decided to commit some robberies to obtain

money to buy drugs. They drove around Baltimore City and

robbed or attempted to rob persons at three different

business establishments within the course of two and

one-half hours. In producing evidence of the various

offenses, the State relied on the “common scheme” exception

to the general exclusionary rule. Under the facts of the case,

however, we held, Judge Cole speaking for the Court, that

the State failed to prove a single inseparable pian

encompassing the offenses and did not establish

“that the various acts constituting the offenses

naturally relate to one another by time, location, .

circumstances and parties so as to give rise to the .

conclusion that they are several stages of a.

continuing transaction.” 284 Md. at 243.

Because the offenses did not fall within the common scheme

exception upon which the State relied, we held that the trial

TICHNELL v. STATE 71d

§95) Opinion of the Court

court abused its discretion in failing to grant a severance. As

we have indicated. the offenses consolidated for trial were

closely related to each other and occurred within a

fiteen-minute period within a tightly confined area rear

Davidson's store. Among other reasons, the proximity of

time and space within which the offenses were committed

distinguishes this case from Jones.

We conclude that the trial judge did not abuse his

discretion in consolidating the three indictments for trial

and that Tichneil was not prejudiced by the joinder for any

of the reasons claimed underMcKnight.*

(3:

Tichnell contends that he was obliged to ask for a change

of venue from Garrett County, but that he was prejudiced by

the removal to Wicomico County, some 300 miles to the east.

He contends that he was thereby denied his constitutional

right under Art. 20 of the Maryland Declaration of Rights to

try the facts of the case where they arose.* He also contends

that he was entitled to be tried by.a jury of his peers under

Art. 24 of the Declaration of Rights, but that a Wicomico

County jury did not constitute a jury of his peers in a case

arising from Garrett County, high in the Appalachian

mountain region.’ These contentions are devoid of merit.

Tichnell did not object to the removal of the case to

Wicomico County, nor did he seek a further removal to

another county.* Under these circumstances, the claims of

5. The “identity” and “common scheme” exceotions to the other crimes

rule are not applicable in the circumstances of case. Because Tichnei!

admitted his identity at the outset of the trial. the identity exception was

inapplicable. P. Herrick. 1 U’nderhuil’s Criminal Evidence § 210 at 637 (6th

ed. 1973). The common scheme exception was inapplicable because the

crimes charged in the three indictments did not —— a “single

inseparable plan.” State v. Jones, supra, 284 Md. at 241-4

6. Art. 20 provides: “That the trial of facts where they arise. is one of the

securities of the lives, liberties and estate of the Peovie.”

7. Art. 24 provides that “no man ought to be ... deprived of his life,

liberty or property, but by the judgment of his peers, or oy the Law of the

8. Art. 4, Sec. 8 of the Maryland Constitution makes provision for an

automatic right of removal in a capital criminal case “to some other court

having jurisdiction in such case for trial ....”

_A.19

714 TICHNELL v STATE

Opinion of the Court 237 Md.

prejudicial removal and violation of Art. 20 are not properly

before us. Maryland Rule 885. The right under Art. 24 toa

judgment by one’s peers guarantees trial by jury. See Wngar

v. Wright's Lessee, 2 Md. 429, 452 (1852). Although Art. 21

further guarantees the right to an impartial jury, Couser v.

State, 282 Md. 125, 383 A.2d 389 (1978), an accused, of

course, does not have the right to be tried by any particular

jury or jurors. See, e.g., Kinsey v. State, 49 Ariz. 201, 65 P.2d

1141, 1148 (1937); Nail v. State, 231 Ark. 70, 328 S.W.2d

836, 841-42 (1959); People v. Howard, 211 Cal. 322, 295 P.

333, 334 (1930); State v. Critelli, 237 lowa 1271, 24 N.W.2d

113, 118 (1946).

Tichnell next contends that he was denied a fair and

impartial jury trial because a hostile atmosphere was

generated (a) by a parade of police officers, and other persons

associated with police programs, all of whom testified for the

State at the trial, (b} by a number of “erratic statements”

made by the prosecutor to the jury based on speculation

rather than evidence, and upon other prosecutorial }

misconduct, (c) by the trial judge overruling defense ‘

objections and motions on evidentiary issues, thus damaging 1

his record, (d) by displaying inflammatory exhibits to the ,

jury, and also boxes containing exhibits which were marked

in large black letters as relating to the “murder” cf the }

deputy, and (e) by undue reference to Tichneil as a West :

Virginian.

We have carefully reviewed the record and conclude that

these contentions, which represent baid allegations at best,

unsupported by specifics, are without merit.

Tichnell also contends that Judge Pollitt did not give

adequate instructions to the jury and in particular failed

clearly to instruct the jury that the burden was on the State

to prove beyond a reasonable doubt that he did not act in

self-defense when he shot the deputy. Since Tichnell did not

object to the detailed instructions given by Judge Pollitt,

review as of right is precluded. Maryland Rule 757.

Moreover we see no plain error in the court’s jury

instructions, including its instructions pertaining to the

635 INIPW

State's burden of proof on Tichneil’s ciaim of self-defense.

See State v Evans. 275 Md. 197. 362 A.2d 629 1976).

‘C)

Tichnell contends that the trial court improperly admitted

evidence pertaining to crimes committed at the Friend

residence. He points out that he was not on trial for any of

these offenses, and claims that he was pretudiced by the

admission of this evidence, i.e., the testimony of Car! Friend

that Recek and a man wearing a ski mask had entered the

Friend residence brandishing guns, tied up the members of

the family, stole Carl's car, 320 in cash, a camera and a hat.

Tichnell objected to Friend’s testimony on relevancy

grounds. He advised the court before Friend testified that

his identity as one of the persons who entered the Friend

home would be admitted. He claimed that “proving other

crimes which are not charged in the indictment ... will

certainly taint this jury should they be called upon to pass

upon the death sentence.” Judge Pollitt ruled that evidence

of flight was relevant and had a bearing on the consciousness

of guilt and was admissible even if "in the process it hapcens

to show the commission of some other crimes.”

The State argues that under Cross y. State. supra, it is

permissible to introduce evidence of crimes other than those

on trial to establish motive, intent, identity or a common

pian. It contends that Tichnell’s conduct, appearance and

conversation, at a time shortly after the killing, were

directly relevant to his state of mind. According to the State,

the continuation of flight, the attempt at disguise, and the

statements made by Tichnell at the Friend house prove the

intent and motive accompanying the earlier crimes.

We think that Tichnell waived his odjection to the

admission of the contested evidence. While he objected to

Friend’s testimony before it was given, and moved

9. The jury was instructed: “The State has the burden of proving based

upon the evidence introduced at trial every fact necessary :0 convict: the

defendant of the crimes with which he is charged. This burden remains with

the State throughout the trial. The defendant does not have the burden of

proving his innocence or producing any evidence.”

716 TICHNELL v STATE

Ooinion of the Court

unsuccessfully for a mistrial after it was given, he cid not

thereatter object to the admission of his first statement to

the police, which recounted the crimes committed at the

Friend home. Nor did he object to the admission of his secona

statement, which also contained details concerning the

commission of these offenses. Under Marvianc Rule 522d 2.

it is not reversible error when evidence, ciaimed to be

inadmissible, is later admitted without dijactan. See, 2.2.

Robeson v. State, 285 Md. 498, 403 A.2d 1221 (1979), cere.

denied, 444 U.S. 1021: 3 & S Bldg. Corp. v. Fidelity Storage.

Md. 184, 310 A.2d 77S (1973); Peisner v. State, 236 Md.

137. 144, 202 A.2d 585 (1964), cert. denied. 379 U.S. i001,

85 S. Ct. 723, 13 L. Ed. 2d 702 (1965): Avson v. State. 225

Md. 140, 169 A.2d 449 (1961) .per curiam); Journigan v.

State, 223 Md. 405, 412, 164 A.2d 896 (1960); State Roads

Comm. v. Bare, 220 Md. 91, 94, 151 A.2d 154 (1959).'° On

direct examination, Tichnell testified to the events at the

Friend house and to his seizure of Carl Friend’s vehicle. His

testimony was consistent with his earlier statements to the

police, which were admitted in evidence without objection.

Tichnell’s own testimony having confirmed the evidence to

which he had previously objected, no reversidle error exists.

See Hillard v. State, 286 Md. 145, 406 A.2d 415

(1979); Robeson v. State, supra, 285 Md. at 506-07; Peisner

v. State, supra, 236 Md. at 144-45; Connor v. State, 225 Md.

543, 555, 171 A.2d 699, cert. denied, 368 U.S. 906, 82 S. Ct.

186, 7 L. Ed. 2d 100 (1961). Thus, even assuming the

evidence of other crimes committed at the Friend residence

was inadmissible, Tichnell nevertheless wavied his

objection to such evidence.'*

10. It is of no assistance to Tichneil that he belatedly objected to the

admission of the part of the second. statement which covered the Friend

incident. Nor does it heip his ; t that he moved for a mistria! at the

close of the State's case-in on the ground that evidence of the Friend

offense was inadmissible.

11. While we do not decide the question, we note the existence of cases

holding that evidence of flight, oven Cae it may show the commission of

other crimes by the defendant, is admissibie to show intent or consciousness

of guilt. See, e.g., Westcoat v. State. 231 Md. 364. 190 A.2d 544 (1963);

lay v. Stace, 211 Md. 577. 585. 128 A.2d 634 (1957); er States v.

Peltier, 585 F.2d 314, 322-25 :6th Cir. 1978), cert. denied, 440 U.S. 945, 99

S. Ct. 1422, §9 L. Ed. 2d 634 11979): Meredith v. Stare, 247 Ind. 233, 2:4

A. 22

—

Tichneii contends that in view of the evidence at the tr:ai,

including the evidence that the shooting of the deputy was

in self-defense, the jury could not rationa!ly find, beyond a

reasonable doubt, that he was guilty of wiiful, deliberate and

premeditated first degree murcer. We disagree.

In Jackson v. Virginia, 443 U.S. 207, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979), the Surpeme Court held that the due

process standard recognized in In re Winship, 397 U.S. 358,

90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), requires that the

following standard be applied in a review of the sufficiency

of the evidence to support a criminal conviction: “whether

the record evidence could reasonably support a finding of

guilt beyond a reasonabie doubt.” 443 U.S. at 313. This

standard does not require a court to “‘ask itself whether :t

believes that the evidence at the trial established guilt

beyond a reasonable doubt.’” Jd. at 318-19 (emphasis in

original). Instead, the standard to apply is “whether, after

viewing the evidence in the light most favorable to the

prosecution, anv rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

Id. at 319 (emphasis in original).

The principies of law applicable to determining whether 2

felonious homicide constitutes a wilful, deliberate and

premeditated murder are well settled. For a killing to be

“wilful” there must be a specific purpose and intent to kill;

to be “deliberate” there must be a fuil and conscious

knowledge of the purpose to kill; and to be “premeditated”

the design to kill must have preceded the killing by an

appreciable length of time, that is, time enough to be

deliberate. it is unnecessary that the deliberation or

premeditation sha!] have existed for any particular length of

N.2.2d 385, 286-87 (1966); State v. Davies, 350 So. 2d 586, 588-39 (La.

1977); Commonwealth v. Gilday, 267 Mass. 474, 327 N.E.2d 851, 364

(1975); Williams v. State, 85 Nev. 169, 451 P.2d $48, 552 (1969); State v.

Jones, 292 N.C. 513, 234 S.E.2d 555, 561-62 (1977); State v. Ross, 92 Ohio

ope. 29, 108 N.E.2d 77. 83-84 (1952); Whittington v. State, 580 S.W.2d 845

ex. Cr. App. 1979); Thames v. State, 453 S.W.2d 495, 500-01 (Tex. Cr.

App. 1970); Ua

derniil's Criminai Evidence, supra, § 206 at 604.

a ee eee ee

a

’ eocTrsLes er io al kek a

ao Til MNELL . ws ay

‘Qyinton of the Court Si

time. Their existence is discerned from the facts of the case.

E.g.. Giadden v. State, 273 Md. 383. 357, 330 A.2d i176) 1974:

Robinson v. State. 249 Md. 209, 298-09. 258 A.2d 375.

cert. denied. 393 U.S. 928, 89 S. Ct. 259. 21 L, Ed. 2d 265:

Chisely v. State, 202 Md. 87, 106-07, 95 A.2d 577 :1952). If

the killing results from a choice made as the result of

thought, however short the struggie between the intention

and the act, it is sufficient to characterize the crime as

deliberate and premeditated murder. ‘Wilson v. State.

261 Md. 551, 565, 276 A.2d 214 (1971): Hyde v. State, 223

Md. 209, 215-216, 179 A.2d 421 ‘1962). Of course. an

inference of a specific intent to kill may arise from the use

of a deadly weapon against a vital part of the body. See. e.g..

State v. Evans, supra. 278 Md. at 205; Davis + State, 204

Md. 44, 51, 102 A.2d 816 (1954).

To justify a homicide on the basis of self-defense (other

than felony murder)

“the accused must have had reasonable grounds to

believe, and have in fact believed, himself in

apparent imminent or immediate danger of ceazh

or serious bodily harm from his assailant or

potential assailant.... In Maryland it is for the

trier of the facts to determine whether the accused

was justified in meeting force with force. If

justificaticn be found to have existed, the force used

must not have been ‘unreasonable and excessive’,

that is. must not have been more force ‘than the

exigency reasonably demanded.’ ”

Guerriero v. State, 213 Md. 545, 549, 132 A.2d 466

(1957) (citations omitted).

Accord, DeVaughn v. State, 232 Md. 447, 453, 194 A.2d 109

(1963), cert. denied, 376 U.S. 927, 84S. Ct. 693, 11 L. Ed. 2d

623; Bruce v. State, 218 Md. 87,.96-97, 145 A.2d 428 (1958).

As the record reveals that Tichnel! introduced evidence

sufficient to generate a jury issue with respect to self-defense,

the State had the burden of negating the defense. State v.

Evans, supra, 278 Md. at 207-08.

ST NT ONE Chor 25S 52-3 va

595; pintun ot the Court

The jury was not ooliged to beiieve Tichneil’s version of

the shooting and it did not. From the evidence in the case.

the tury could rationally find, beyond a reasonabdie doubt,

that Deputy Livengood was not shot while he struggled

with Tichneil at the door of Tichnell’s car. Woife’s testamony

showed that there was a burst of gunfire, followed almost

immediately by the sound of spinning wheels and a

simultaneous volley of additional shots — a version whoily

inconsistent with Tichnell’s statements and testimony. The

absence of gunshot powder burns on either the deputy’s or

Tichnell’s clothing also contradicted Tichnell’s statements

that the shots were fired at point-biank range. The five spent

shells found in close proximity to the deputy’ body

constituted evidence that he was shot at some distance from

Tichnell’s car. The jury could find from the evidence that

Tichnell was lying when he said he drove around Oakland

while waiting for Recek to find the iost gun. It could have

found that Tichnell was lying about being bitten by the K-9

dog, about the dog’s inaction during the alleged struggle at

the car, and about the stabbing of the dog inside of the

deputy’s cruiser. It could have found from the wounds

suffered by the deputy that the fatal shots were fired into his

body from behind when he was investigating the suspect

vehicle observed at the scene.

The jury could have found from the evidence of the bloody

holster that Tichnell was lying when he said he was

unarmed when be broke into Davidson's store and when he

first confronted the deputy on or near Route 4. And the jury

could have found from the course of Tichneli’s flight, and his

actions during that time, that he was conscious of his guilt

— a circumstance at variance with his later statements that

the killing was in justifiable seif-defense. In sum, the

evidence supplied to the jury provided an ample basis to find

wilful, deliberate and premeditated first degree murcer

under the test articulated in Jackson v. Virginia, supra. In

so concluding, we are not unmindful of the principle that the

firing of two or more shots separated by an interval of time

may be viewed as evidence of premeditation. See ‘Wilson v.

State, supra; Cummings v. State, 223 Md. 606, 165 A.2d 336

A. 25

(1960); Chisley v. State. 202 Md. 87, 95 A.2d 57

aT State. 45 Md. Aon. 314. 412 Aud 2 sy)

fuller vv. otale@, 20 WIC. ADD. wat. #1 A wG os ev!

Tichneil next contends that Marvland’s death penaity

statute, ch. 3 of the Acts of 1978, now codified as Marvland

Code (1957, 1976 Repi. Vol.. 1979 Cum. Supp.), Art. 27,

$3 412-414, is facially unconstitutional since it imposes

crue! and unusua! punishment in violation of the Eighth and

Fourteenth Amendments to the federal constitution and Art.

25 of the Maryland Declaration of Rights.'*

By ch. 115 of the Acts of 1908, the General Assembly

invested trial courts of general jurisdiction with the

discretion to sentence a person convicted of first degree

murder to either death or life imprisonment. In Furman v.

Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed 2d 346

(1972), the Supreme Court declared in a per curiam opinion

that death sentences administered under such discretionary

statutes constituted cruel and unusual punishment in

violation of the Eighth anc Fourteenth Amendments to th

federal constitution. Five Justices supported the Court’s per

curiam decision; four Justices dissented. Justices Brennan

and Marshall found the imposition of the death penalty

unconstitutional as constituting cruel and unusual

punishment in all cases. Justice Douglas conciuded that

sentencing procedures, which vested judges or juries with

uncontrolled discretion in deciding whether to impose either

capital punishment or imprisonment, ied to arbitrary and

discretionary application of the penalty to unpopular groups,

thus violating the concept of equal protection implicit in the

12. The Eighth Amendment provides: “Excessive bail shail not be

me nor excessive fines imposed. nor cruei and unusual punishments

intlicted.”

Art. 25 provides: “That excessive bail ought not to be required, nor

excessive fines imposed, nor cruel cr unusual punishment inilicted. by the

Courts of Law.”

A. 26

See ee —

= 38s he fete

TICHNELL v. STATE 721

595) Opornion of the Court.

ban on cruel and unusua! punishments. Justice Stewart also

focused on the administration of the penalty and conciuded,

in part, that the death sentences before the Court were cruel

and unusual because they were wantonly and freakishly

imposed upon a capriciousiy selected few. Focusing on the

infrequent imposition of the penalty and the lack of a

meaningful basis for distinguishing the cases in which death

is imposed from the cases in which it is not, Justice White

found such a discretionary imposition of the death penalty to

constitute cruel and unusual punishment. A central theme

of the four dissenting Justices (Burger, Blackmun, Poweil

and Rehnquist) was the appropriateness of judicial deference

to society’s will as manifested in the legislative enactment of

discretionary death penalty statutes.

Based on its decision in Furman, the Supreme Court

vacated the death sentences in all of the pending cases on its

docket, and remanded them for further proceedings. The

response to Furman was varied. Some jurisdictions read

Furman as requiring a mandatory death penalty, while

others construed the decision merely to forbid unbridled

discretion in capital sentencing statutes.

In Bartholomey v. State, 267 Md. 175, 182, 297 A.2d 696

(1972), we declared Maryland’s then existing death penalty

Statutes unconstitutional. We said:

“We entertain not the slightest doubt that the

imposition of the death sentence under any of the

presently existing discretionary statutes of

Maryland which authorize, but do not require, that

penalty is unconstitutional under Furman as

violative of the Eighth and Fourteenth

Amendments to the federal constitution. In other

words, we think the net result of the holding in

Furman is that the death penalty is

unconstitutional when its imposition is not

mandatory.” 267 Md. at 184.

The Generel Assembly sespsadsé t9 Furman and

Bartholomey by enacting a mandatory death_ penaity

statute. Ch. 252, Acts of 1975, codified as Maryland Code

Ae

tow TICHNELL v. STATE

Opinion of the Court {287 Md.

(1957, 1976 Repl. Voil.), Art. 27, § 413. Under this

legislation. the death penalty had to be automatically

imposed upon conviction of a specifically defined and

narrowly drawn class of first degree murders.

In Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct.

2978, 49 L. Ed. 2d 944 (1976), and Roberts v. Louisiana, 423

U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1977). the

Supreme Court held that mandatory death penaity statutes

for first degree murder were unconstitutional because, as

stated in Woodson, they lacked

“the fundamental reepect for humanity -in4er'sing

the kignhth Amendment ... [which] requires

consideration of the character and record of the

individual offender and the circumstances of the

particular offense as a _ constitutionally

indispensable part of the process of inflicting the

penalty of death.” 428 U.S. at 304 ‘citation

omitted).

The Court identified other constitutional shortcomings of a

mandatory death penalty statute. It said in Woodson

that such mandatory measures violated contemporary

standards of civilization, id. at 289-301, and impermissibiy

vested standardless sentencing discretion in juries, id. at

302-03.

In accordance with Woodson and Roberts, we held that

Maryland’s mandatory death penalty statute was

unconstitutional. Blackwell v. State, 278 Md. 466, 365 A.2d

545 (1976), cert. denied, 431 U.S. 918, 97 S. Ct. 2183, 53 L.

Ed. 2d 229 (1977). The statute, we said, was constitutionally

defective because it did not provide sufficient

“standards whereby the sentencing authority can

consider the individual circumstances or

characteristics of either the offense or the offercer;

indeed, all those convicted under the statute are

treated alike, without regard to the circumstances.”

278: Md. at 472.

TICHNELL v. STATE T20

695} Opinion of the Court

'n the aitermath of Furman, the Supreme Court not only

considered the constitutionality of mandatory death penaity

statutes, but also addressed the constitutionality of “guided

discretion” statutes. [t upheld the death penalty statutes of

Georgia, Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49

L. Ed. 2d 859 (1976); Florida, Proffitt v. Florida, 428 U.S

242, 96S. Ct. 2960, 49 L. Ed. 2d 913 (1976); and Texas, Jurex

v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929

(1976). In Gregg, the Court rejected the argument that the

death penaity constitutes cruel and unusual punishment

under all circumstances. 428 U.S. at 168-87. The Court’s

rinrality oninion approved the constitutionality of guided

discretion capital sentencing statutes. It construed Furman

as holding that the death penalty could not be imposed under

sentencing procedures that created a substantial risk that it

would be inflicted in an arbitrary and capricious manner. It

further stated:

“Furman mandates that where discretion is

afforded a sentencing body on a matter so grave as

the determination of whether a human life should

be taken or spared, that discretion must be suitably

directed and limited so as to minimize the risk of

wholly arbitrary and capricious action.” Id. at 138.

The death penalty statutes upheld by the Court in Gregg,

Proffitt ard Jurek each contained three provisions which

guarded against the concerns raised in Furman. First, each

of the new discretionary statutes provided for a bifurcated

trial so that guilt and punishment would be separately

determined. Second, imposition of the death penalty was

restricted to cases in which certain aggravating

circumstances were established. The sentencing authority

was also required to consider the existence of mitigating

circumstances. The Court stated in Jurek v. Texas, supra,

428 U.S. at 274, that this type of provision

“guides and focuses the {sentencing authority's]

objective consideration of th part-cularizec

circumstances of the individual offense and the

Ladtetdeeal affand atas

individual offender before it can impose a sentence

of death.”

4. 22

Orinion of the Court (os7 Ma.

Finally, the statutes that were upheld provided for expedited

appellate review of the death penaity statute as a check

against the random or arbitrary imposition of the death

penaity.

Maryland’s current capital sentencing statute, Art. 27,

§§ 412-414, enacted following our decision in Blackwell v.

State, supra, retains the death penalty for first degree

murder.*? The guilt or innocence of an accused charged with

first degree murder, who is properly notified of the State’s

intent to seek the death penalty, is determined in the

traditional manner either by the court or a jury as the first

step of a bifurcated trial. As soon as practicable after the

defendant is found guilty of first degree murder, a separate

sentencing proceeding must be held to determine whether

death or life imprisonment should be imposed. § 413 (a).

Section 413 (b) provides that this proceeding shall be heard:

(1) Before the jury that determined the

defendant’s guilt; or

(2) Before a jury impaneled for the purpose of the

proceeding if:

(i) The defendant was convicted upon a plea of

guilty;

(ii) The defendant wes convicted after a trial

before the court sitting without a jury;

(iii) The jury that determined the deferndant’s

guilt has been discharged by the court for good

cause; or

(iv) Review of the original sentence of death by a

court of competent jurisdiction has resulted in a

remand for resentencing; or

(3) Before the court alone, if a jury sentencing

proceeding is waived by the defendant.”

13. Section 412 (b) provides that

“lal person found guilty of murder in the first degree shail be

sentenced either to deata or to imprisonment for life. The sentence

shall be imprisonment for life unless (1) the State notified the

person in writing at !east 30 days prior to trial that it intended to

seek a sentence of death. and advised the person of each

aggravating circumstance upon which it intended to relv, and (2)

a sentence of death is imposed in accordance with ¢ 413.”

A. 30

|

|

|

.

©

ft.

~t

595 lornten of the Court

Section 413 ‘c) specifies a wide range of evidence that may

be introduced at this proceeding, including evidence relatin

to amy statutorily specified aggravating or mitigating

circumstance.‘* At the sentenc:ng proceeding, argument

may be presented for or against a death sentence. } 410 ‘¢)

(2).

In determining the appropriate sentence, the sentencing

authority — either the judge or jury — must first consider

whether, beyond a reasonable doubt, any of ten statutory

aggravating circumstances exist. § 413 (d).‘° If the

14. Section 413 c: furtner permits the admission of:

“(it) Evidence of any prior crimunai convictions, pleas of guilty

or nolo contendere. or the absence of such prior convictions or

pleas, to the same extent admissible in other sentencing

procedures;

(iv!) Any presentence investigation report. However, any

recommendation as to sentence contained in the report is not

admissible; and

(v) Any other evidencé that the court deems of probative value

and relevant to sentence. provided the defendant is accorded a fair

Opportunity to rebut any statements.”

15. Section 413 ‘d) specifies the foilowing aggravating circumstances:

“\1) The victim was a law enforcement officer who was

murdered while in the performance of his duties.

(2) The defendant committed the murder at a time when he was

confined in any correctional institution.

(3) The defendant 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 correctionai

institution or 5y a law enforcement officer.

(4) The victim was a hostage taken or attempted to be taken in

po ae of a kidnapping or abduction or an attempt to kidnap or

abduct.

al The victim was a child abducted in violation of § 2 of this

article.

(6) The defendant committed the murder pursuant to an

agreement or contract for remuneration or the promise of

remuneration to commit the murder.

(7) The defendant engaged or emploved another person to

commit the murder and the murder was committed pursuant to an

agreement or contract for remuneration or the promise of

remuneration.

(8) At the time of the murder. the defendant was under sentence

of death or imprisonment for life.

(9) The defendant committed more than one offense of murder in

the first degree arising out of the same incident.

(10) The defendant committed the murder while committing or

attempting to commit robdery. arson. or race or sexual! offense in

the ‘irst degree.”

A.31

4

a |

4

ae TUN: ’ -

26 TICHNELL v. $

Opinion of the Court 206 wd.

sentencing authority does not find beyond a reasonable

doubt the existence of one or more of the aggravating

circumstances, then the sentence shail de life imorisonment.

3 413 (ff). If, however, the sentencing authority finds beyond

a reasonabie doubt the existence of one or more aggravating

factors, then it must determine whether, by a

preponderance of the evidence. anv one of eight mitigating

circumstances exist. § 413 (g).'® The statute requires that a

sentence of life imprisonment be imposed if. by a

preponderance of the evidence. the sentencing authority

finds that the mitigating circumstances vuiwcigh the

aggravating circumstances. § 413 (h) (1) and (3). If the

mitigating circumstances do not outweigh the aggravating~

circumstances by a preponderance of the evidence, however,

then a sentence of death must be imposed. § 413 (h) (1) and

(2). The sentencing authority's decision must be in writing,

and if the decision is made by a jury, it must be unanimous

16. The following mitigating circumstances are specified in § 413 (g):

“(1) The defendant has not previously (i) been found guilty of a

crime of violence; (ii) entered a plea of guilty or nolo contendere to

a charge of a crime of violence: or (iii) nad a judgment of probation

on stay of entry of judgment entered on a charge of a crime of

violence. 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

cormmussion of a felony or another crume of violence.

(2) The victim was a participant in the defendant's conduct or

consented to the act which caused the victim's death.

(3) The defendant acted under substantial duress, domination or

provocation of another person, but not so substantial as to

constitute a complete defense to the prosecution.

(4) The murder was committed while the capacity of the

Setendees to aepeuchate the estaiagting of tis condan: or to confirm

his conduct to requirements of law was substantially impaired

as a result of mental incapacity, mental disorder, emotional

disturbance, or intoxication.

(5) The youthful age of the defendant at the time of the crime.

(6) The act of the defendant was not the sole proximate cause of

the victim's death.

(7) It is unlikely that the defendant will engage in further

criminal activity that would constitute a continuing threat to

society.

(8) Any other facts which the jury or the court spec:ficaily sets

forth in writing that it finds as mitigating circumstances in the

case.

A. 32

TICHNELL v. STATE ter

695] Opinion of the Court

and signed by the foreman. § 413 i).'° Under § 413 ‘k). the

trial court is required to impose the sentence determined by

the sentencing authority. If, however, the jury is unable to

agree upon a sentence within a reasonable amount of time,

the court must dismiss the jury and impose a sentence ot life

imprisonment. § 413 (k) (2).

Section 413 (1) further provides that the Court of Appeals

may adopt rules of procedure to govern the conduct of the

sentencing proceeding. Pursuant to this provision, we

adopted Maryland Rule 772A, effective January 1, 1979

(eighteen days prior to the murder in this case). The rule

imposes three major requirements, the first of which is the

use of a standard form verdict sheet. As formulated in the

rule, the sentencing authority must specify in writing

whether each aggravating or mitigating circumstance was

established by the degree of proof mandated by § 413. Rule

772A e further requires the trial court to advise the

defendant of his right to appeal. Finally, subsection (f) of the

rule obligates the trial court to prepare an extensive report

in every case where the death penalty is sought, whether or

not it is imposed. The report, which must be submitted to us

under the rule, is designed to provide detailed information

concerning the defendant, the offense, the victim, and the

circumstances of the trial. In instances when a sentence of

death is imposed, the trial judge must state his opinion

whether the sentence was justified. The factual accuracy of

the trial judge’s report may be commented on by the parties

within five days after receiving it.

Provision is made in the statute for expedited review by

17. Under § 413 (j), the determination by the sentencing authority must

specify the following information:

“(1)_ Which, if any, aggravating circumstances it finds to exist:

(2) Which, if any, mitigating circumstances it finds to exist:

(3) Wnetaer any mitigating circumstances found ore

ion (g) cutweigh the aggravating circumstances foun

under subsection (4);

(4) Whether the aggravating circumstances found under

subsection (d) are not outweighed by mitigating circumstances

under ion (g);

oA sentence, determined in sccordance with subsection (f

or ifm).

_A.33

ee

et eiucat i a eee

7/28 TICHNELL v. STATE

pinion of the Court ST Ma

this Court of the appropriateness of the death sentence in the

circumstances of the case. } 414 ‘a) and (b:. In addition to

our consideration of any errors properly Defore us on appeal.

3} 414 ‘e) directs that in the course of our review of the

sentence on the record, we must determine:

“(1) Whether the sentence of death was :mposed

under the influence of passion, prejudice. or any

other arbitrary factor;

(2) Whether the evidence supports the iury’s or

court's finding of a statutory

circumstance under § 413 id);

(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.”

aggravating

Under § 414 (f) (2), we are directed to inciude in our decision

a reference to the “similar cases” that we considered. We are

obliged by the statute to exercise one of three options: ‘1)

affirm the death sentence, or (2) set aside the sentence and

remand the case for the conduct of a new sentencing

proceeding, or (3) set aside the sentence and remand for

modification of the sentence to life imprisonment. § 414 ‘f)

(1) (i)-«iii).

We turn now to a consideration of the constitutionality of

Maryland’s capital sentencing statute. That it is not a

mandatory death penalty statute is clear. Because it allows

for a broad consideration of mitigating circumstances, it

plainly withstands scrutiny under Woodson v. North

Carolina, supra, and Roberts v. Louisiana, supra.'*

Furthermore, it is clear that the statute complies with the

18. In 3 later decision, the Supreme Court concluded that imposition of

a mandatory death sentence for first degree murder of a police 2Ticer

constituted cruel and unusual punishment. Roberts v. Louisiana, 451 U 5S.

633, 97 S. Ct. 1993, 52 L. Ed. 2d 637 (1977).

_A3s

TICHNELL v. STATE 129

595} Ooimon of the Court

three genera! methods of guiding the discretion vested in the

sentencing authority under Gregg, Proffitt. and Jurek. The

statute provides a bifurcated trial procedure. and the

imposition of the death penalty is limited to cases in which

the sentencing authority finds at least one aggravating

circumstance. The sentencing authority is required to

consider the existence of mitigating circumstances. A

senter:ce of death may be imposed only if the mitigating

circumstances do not outweigh the aggravating

circumstances. Although the sentencing authority still has

. discretion under the statute, it is guided by clear and

objective standards. See Gregg v. Georgia, supra, 423 U.S. at

197-98.

Moreover, the statutory scheme incorporates the third

major safeguard against arbitrariness, i.e., the expedited

automatic appeal of ail death sentences to this Court. As

indicated, we are enjoined by statute to review each sentence

of death and determine whether it was arbitrarily imposed.

whether the evidence supports the finding of the existence of

am aggravating circumstance and whether it is not

outweighed by mitigating circumstances and, finally,

whether the sentence is disproportionate to sentences

imposed in similar cases. In short, we hold that, on its face.

the Maryland statutory scheme for imposition of the death

penalty satisfies the requirements of the Eighth and

Fourteenth Amendments to the federal constitution, and

Art. 25 of the Maryland Declaration of Rights.

(B)

Tichnell next maintains that § 413 violates due process by

reason of the standards of proof required by the section. and

by its allocation of the burdens of proof respecting the

existence of mitigating circumstances and the balancing of

mitigating and aggravating circumstances. He argues that

sentencing determinations under § 413 must be made on the

basis of sroof bevond » reasenst!c doubt. nut un the dasis of

a preponderance of the evidence. Tichnell’s position is

supported by an amicus brief filed by the Public Defender.

4.35

owe B4WbseYanbsk ¥v. SLAIGC

Pehe C (9387 Md

Opinion of the Court Lou vid.

Relying on In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25

L. Ed. 2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684,

95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), it is suggested that

due process requires the prosecution to assume the burden of

proving beyond a reasonable doubt the absence of any

mitigating circumstances enumerated in § 413 ‘g) that are

raised by the accused in the penalty phase of trial. It is

contended that due process also requires the State to assume

the burden of proving beyond a reasonable doubt that the

aggravating circumstances outweigh the mitigating

circumstances.

Section 413 does not explicitiy specify which party has the

burden of producing evidence and the burden of persuasion.

Instead, § 413 speaks in terms of requiring tie sentencing

authority to make findings that satisfy either the reasonable

doubt or the preponderance of evidence standard; the section

involves a three-step procedure. First, as a condition

precedent to the imposition of the death penalty, the

sentencing authority must find beyond a reasonable doubt

that at least one aggravating circumstance has been proved.

§ 413 (f. As to this, the State bears both the risk of

nonproduction and nonpersuasion. The second step requires

that the sentencing authority consider whether, by a

preponderance of the evidence, a mitigating circumstance

exists. § 413 (g). This provision does not require the

prosecution to disprove the existence of mitigation, thus

placing on the accused the risk of nonproduction and

nonpersuasion. Finally, if the sentencing authority finds, by

a preponderance of the evidence, that the mitigating

circumstances do not outweigh the aggravating

circumstances, the death penalty must be imposed. § 413 (h)

(2). Because the State is attempting to establish that the

imposition of the death penalty is an appropriate sentence,

the statute places the risk of nonpersuasion on the

prosecution with respect to whether the aggravating factors

outweigh the mitigating factors.

We find nothing in Winship and Mullaney to justify

Tichnell’s due process argument. In Winship, the Supreme

A. 36

—_———_—

TICHNELL v. STATE oe

~

695} Opinion of the Court

Court invalidated 1 procedure which. in the adjudicatory

stage of juvenile delinquency proceedings, required the

prosecution to prove delinquency, but only by a

preponderance of the evidence. The Court noted that:

“'There is always in litigation a margin of error,

representing error in factfinding, which both

parties must take into account. Where one party

has at stake an interest of transcending value — as

a criminal defendant his libertv — this margin of

error is reduced as to nim by the process of placing

on the other party the burden of * * * persuading

the factfinder at the conclusion of the trial of his

guilt beyond a reasonable doubt. Due process

commands that no man shall lose his liberty unless

the Government has borne the burden of * * *

convincing the factfinder of his guilt.’” 397 U.S. at

364.

The reasonable doubt standard was referred to in Winship

as a “prime instrument for reducing the risk of convictions

resting on factual error,” while the due process clause was

said to protect the accused “against conviction except upon

proof beyond a reasonable doubt of every tact necessary to

constitute the crime with which he is charged.” Id. at 363-64

(emphasis added).

Mullaney invalidated a Maine statute which required the

defendant to prove by a preponderance of the evidence

provocation as a defense to murder in order to reduce the

offense to manslaughter. The Court held that the due process

clause requires the prosecution to prove beyond a reasonable

doubt the absence of provocation when the issue is properiy

raised in a homicide case.

Tichnell argues that the rationale of Winship and

Mullaney is applicable to the death sentencing procedure in

§ 413, and consequently no burden may be imposed on him

to establish circumstances sufficient to avoid the imposition

of the death penalty. We disagree.

The principles articulated in Winship, ani in Mullaney,

A a7

ive asliluarous v. O1RA1Gk

Opinion of the Court. 287 Md.

as later modified in Patterson v. New York, 432 U.S. 197, 97

S. Ct. 2319, 53 L. Ed. 281 (1977), do not require she

prosecution to either prove beyond a reasonabie doubt the

absence of mitigating circumstances, or to prove beyond a

reasonabie doubt that the aggravating circumstances

outweigh the mitigating circumstances.

In Patterson, the Supreme Court held that the defendant’s

conviction of murder did not violate the due process clause

by requiring that he prove by a preponderance of the

evidence the affirmative defense of extreme emotional

disturbance in order to reduce the offense to mansiaughter.

The Court rejected the argument that this defense was

indistinguishable from the provocation defense raised in

Mudianey. The Court relied on the line of .ases appiuving

placement of the burden of persuasion of insanity on the

defendant. See Leland v. Oregon, 343 U.S. 790, 72 S. Ct.

1002, 96 L. Ed. 1302 (1952). It said:

“Among other things, it is normally ‘within the

power of the State to regulate procedures under

which its laws are carried out, including the burden

of producing evidence and the burden of

persuasion,’ and its decision in this regard is not

subject to proscription under the Due Process

Clause unless ‘it offends some principle of justice so

rooted in the traditions and conscience of our people

as to be ranked as fundamental.’” 422 U.S. at

201-02.

The Court further noted that:

“To recognize at all a mitigating circumstance does

not require the State to prove its non-existence in

each case in which the fact is put in issue, if in its

judgment this would be too cumbersome, too

expensive, and too inaccurate.

“We thus decline to adopt as a constitutional

imperative, operative countrywide, that a State

must disprove beyond a reasonable doubt every fact

constituting any and all affirmative defenses

A, 38

related to the cuipabiiity of an accused.

Traditionally. due process has required that only

the most basic procedural safeguards De odservea:

more suodtie baiancing of society s interests azainst

those of the accused have been left to the iegisiative

branch.” Jd. at 209-10.

We think that the burdens of persuasion as specified in

§ 413 are in accordance with the principles articulated in

Patterson.

Adgitionai support for the constitutionality of Marvyiand’s

capital sentencing determinations is found in Gregg, Protfict

and Jurek. In these decisions the statutory schemes that

Jove upheld ov Jor thy Eighth and Fourteenth Amendments

to the federal constitution did not require the prosecution to

prove the absence of mitigating circumstances beyond a

reasonable doubt. It is also noteworthy that except for the

statutory scheme considered in Proffitt, the statutes

considered in these cases did not explicitly require that the

sentencing authority find that the aggravating

circumstances outweighed the mitigating circumstances

prior to imposing a sentence of death. The Proffitt scheme,

however, did not specify either a preponderance or a

reasonable doubt standard for this determination. The other

statutes, considered in Gregg and Jurek, did not expressiy

call for a balancing process: instead. they merely required

that mitigating circumstances “be considered” if the

sentencing authority found that the existence ot

aggravating circumstances was proven beyond a reasonable

doubt. The Maryland sentencing determinations specified in

¥ 413 plainly withstand scrutiny under Gregg, Proffit: and

Jurek.

Other jurisdictions that have considered the burdens of

persuasion under a statutory scheme similar to § 413 have

held that due process does not require the State to prove

beyond a reasonadie doubt the absence of mitigating

circumstances. See, e.g., State v. Watson, 120 Ariz. +41. 586

P.2d 1233, 1258-229 (1978), cert. denied. 440 U.S. 924, 99S.

Ct. 1254, 39 L. Ed. 2d 478 11979): State v. Pierre, 572 P.2d

A. 39

——

124 TICHNELL v. STATE

Ypimion of the Court 237 Ma

1338, 1346-348 (Utah 1977), cere. denied. 439 U.S. 882,995

Ct. 219, 538 L. Ed. 2d 194 '1978): State v. 3arfieid. 295

N.C. 306, 259 S.E.2d 3519, 543-44 (1979): State v. Johnso

298 N.C. 47. 257 S§.E.2d 5397, 617-18 (i979). The statutory

scheme of § 413, in short, complies with the requirements of

the due process clause of the federal constitution.

iC)

On January 18, 1979, the date or Tichnell’s offenses, the

Maryland capita! penalty statute existed in its present form

with one exception. Subsection ‘g) (3) was added to } 413 by

ch. 521 of the Acts of 1979 and became effective on July 1.

1979, two months before Tichneil’s trial. It directs the

sentencing authority to consider: “Any other facts which the

jury or the court specifically sets forth in writing that it finds

as mitigating circumstances in the case.” This provision was

added to $ 413 after the Supreme Court’s decision in Lockett

v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978),

a case in which the Ohio death penalty statute was

invalidated because it too narrowly limited the discretion of

the sentencing authority to consider mitigating

circumstances. The plurality in Lockett concluded that the

Eighth and Fourteenth Amendments require

“that the sentencer. in al] but the rarest kind of

capital case, not be precluded from considering as a

mitigating factor, any aspect of a defendant's

character or record and any of the circumstances of

the offense that the defendant proffers as a basis for

a sentence ‘ess than death.” Ic. at 604 (emphasis in

origina).

It is contended that the death sentencing procedure under

$ 413 in effect at the time the murder was committed was

unconstitutional under Lockert tecause the subsequent

prosecution of Tichneli uncer the amended version of § 415.

A. 40

okt ie stor?’ oo. aryrT

TICHNE . Si

- -a-

~ ~~ _— rae

595 Joinion of the Court

which cured the previous infirmities, violated the ex post

facto clause of the Marviand Declaration of Rights.*?

Assuming without deciding that 3 412. without ‘he

addition of subsection ‘g! (3), was unconstitutional uncer

Lockett. the 1979 amendment did not violate the ex post

facto clauses of the state and federal constitutions. The

Supreme Court in Dodbert v. Florida, 432 U.S. 282, 97 S. Ct.

2290, 53 L. Ed. 2d 344 (1977), considered a death penalty

statute that had been amended between the time of the

offense and the time of the trial. and decided that the change

did not constitute an ex post facto vioiation. In that case, the

trial judge, acting pursuant to statutory authority.

overruled the jury’s recommendation that the defendant be

sentenced to life imprisonment, and imposed a sentence of

death. The Supreme Court held that the new statute in effect

at the time of trial, which gave the jury only the right of an

advisory determination, did not constitute an ex post facto

violation when the pre-Furman statute in effect at the time

the offenses were committed required the imposition of the

death penalty unless the jury recommended mercy. In

defining the characteristics of an ex post facto law, the Court

noted

"that any statute which punishes as a crime an act

previously committed, which was innocent when

done; which makes more burdensome the

punishment for a crime, after its commission, or

which deprives one charged with crime of any

defense available according to law at the time when

the act was committed, is prohibited as ex post

facto.” 432 U.S. at 292.

The Court found no ex post facto violation because it held

that the changes in the statute were only procedural and

ameliorative. Responding to the argument of the defendant

19. Article 17 provides:

t retrospective Laws, punishing acts committed before :ne

existence of such Laws. and by them only deciared criminal, are

oppressive, unjust and incompatible with liberty: wherefore. no ex

post facto Law ought to be made: nor any retrospective oath or

restriction de imposed. or required.”

A. 3A

pa an — eee ee

236 1 1CH: mele + STATE

Opimion of tne Court 287 Me.

that no valid death penalty statute was in effect at the time

the crime was committed, the Court stated:

“{Tihis sophistic argument mocks the substance of

the Ex Post Facto Clause. Whether or not the did

statute would, in the future, withstand

constitutional attack, it clearly indicated Florida's

view of the severity of murder and of tne degree of

punishment which the legislature wished to impose

upon murderers. The statute was intended to

provide maximum deterrence, and its existence on

the statute books provided fair warning as to the

degree of culpability which the State ascribed to the

act of murder.

". . . Here the existence of the statute served as

an ‘operative fact’ to warn the petitioner of the

penalty which Florida would seek to impose on him

if he were convicted of first-degree murder. This

was sufficient compliance with the ex post facto

provision of the United States Constitution.” 432

U.S. at 297-98.

Although it is undisputed that Dobbert renders meritless

an argument based on the federal ex post facto clause, the

argument is nevertheless made that the Maryland

prohibition on ex post facto laws is applicable. Article 17 of

the Maryland Declaration of Rights parallels the federa!

clause, see Calder v. Bail, 3 Dall. 386, 389, 1 L. Ed. 648, 650

(1798); Elliott v. Elliott, 38 Md. 357, 362 (1873); Lynn v.

State, 84 Md. 67, 78, 35 A. 21 (1896), and the Supreme

Court’s interpretation of the federal ex post facto clause is

persuasive authority.

20. In construing Virginia's legislatively enacted “ex post facto clause.”

the Virginia Supreme Court viewed Doddert as authority to uphold a death

sentence for a crime coramitted before the effective date of the state death

penalty statute. Smith v. Commonwealth. 219 Va. 455. 243 S.E.2d 135

(1978), cert. denied. 441 U.S. 967. 99 S. Ct. 2419, 60 L. Ed. 2d 107411979)

Contra, Miller v. State, 584 S.W.2d 758 (Tenn. 1979) (state constitutional

prohibition against ex post ‘acto laws invaiidated the death sentence when

the defendant committed the crime at a.time the Tennessee death penaity

statute was unconstitutional).

A. 32

TICHNELL v. STATE 737

625} Opinion of the Court.

The change in $ 413 by the addition of subsection (g) (3)

was clearly procedural. In the words of Dobdbert:

“The new statute simply altered the methods

emploved in determining whether the death

penalty was to be imposed; there was no change in

the quantum of punishment attached *o the crime.”

432 U.S. at 293-94.

Furthermore, assuming that the addition of subsection (g)

($) was necessary to comply with Lockert, the change did aot

make the statute more onerous, but instead afforded the

defendant significant new safeguards. Moreover, we repeat

the observation of the Supreme Court in Dodbdert that the

defendant had fair warning as to the degree of culpability

which Maryland ascribes to the act of murder. We think it

clear that Article 17 of the Maryland Declaration of Rights

was not violated in this case.

(D)

It is next contended that Article 23 of the Maryland

Declaration of Rights permits a jury to reach arbitrary

sentencing decisions in violation of the constitutional

requirements of Gregg v. Georgia, supra. Article 23 provides

in pertinent part:

“In the trial of all criminal cases, the Jury shail

be the Judges of Law, as well as of fact, except that

the Court may pass upon the sufficiency of the

evidence to sustain a conviction.”

Maryland Rule 757 6 implements this constitutional

provision and requires:

“In every case in which instructions are given to the

jury the court shail instruct the jury that they are

the judges of the law and that the court's

instructions are advisory only.”

It is argued that counsel may as a matter of right argue to

the jury a position contrary to the court’s instructions, see

A. 43

33 LICMNELL v. SLALE

Opimicn of the Court 287 Md

Dillon v. State, 277 Md. 571, 581, 357 A.2d 2

Wiison v. State, 239 Md. 245, 255, 210 A.2d 8 $63);

Schanker v. State, 208 Md. 15, 21-22, 116 A.2d 363 (1955),

and consequently the jurv is unconstitutionally made the

final arbiter as to the law governing the imposition of the

death penalty. Because the jury is told that it is the judge of

the law, the contention is advanced that there is no way to

ensure compliance with the safeguards placed on the

sentencer’s discretion by $ 413.

The short answer to this argument is that a claim based

on Article 23 is not presented by this case. As permitted by

§ 413 (b) (3), Tichnell waived his right to a jury

determination of sentence and elected to have the judge

make the decision. Although in making his eiection,

Tichnell expressed concern that the jury would improperiv

consider inflammatory evidence presented at the guilt stage

of his trial, there is no suggestion in the record that the

waiver was prompted by a fear that Article 23 vests the jury

with the power to disregard the statutory sentencing

criteria. Thus, the facts of this case do not present a claim

based en Article 23.

(E)

Section 414 (e) requires that, in reviewing the death

sentence imposed upon Tichnell, we determine (1) whether

the sentence was imposed under the influence of passion,

prejudice, or any other arbitrary faccor; (2) whether the

evidence supports the sentencer’s finding of a statutory

aggravating circumstance; (3) whether the evidence

supports the sentencer’s finding that aggravating

circumstances outweigh mitigating circumstances; and

finally

(4) Whether the sentence of death is excessive or

disproportionat2 tc the penaity impused in simular

cases, comsidering both the crime and the

defendant.”

A. 44

ICHNELL v. STATE 739

695] Yoinion of tne Court

Section 414 (e) appears to be patterned after the appeilate

review provision of the Georgia death penalty statute

approved in Gregg v. Georgia, supra, 428 U.S. 153 (1976).**

In that case, the Supreme Court noted that the appeilate

review provision of the Georgia capital-sentencing scheme

functions as a check against the arbitrary imposition of the

death penalty. Jd. at 206.

Given the identity of language and purpose of the

proportionality provision of § 414 ‘e) (4) and the sentence

review provision approved in Gregg, the Georgia provision

may be utilized as a guideline for our review determinations.

The proportionality review provision (also referred to as the

comparative review clause), as interpreted by the Georgia

Supreme Court, requires the setting aside of a death

sentence as excessive if it is “ ‘rarely imposed for an act or

it is substantially out of line with sentences imposed for

other acts.’” Coley v. State, 231 Ga. 829, 204 S.E.2d 612,

616 (1974). Under this provision, the Georgia Supreme

Court has held that a death sentence in a murder case may

be affirmed only if juries generally throughout the state

have imposed the death penalty for that kind of offense.

Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258, 270 (1975). As

summarized in Gregg, the proportionality review provision

of the Georgia statute

“substantially eliminates the possibility that a

person will be sentenced to die by the action of an

aberrant jury. If a time comes when juries generally

do not impose the death sentence in a certain kind

21. In considering the lateness of a death sentence, the Supreme

Court of Genrgia is & to consider:

gucsnen Gl punton lealien, oe ne oteae eotionny tooo, oa

uence of passion, prejudice, or any itrary factor, an

(2) Whether . . . the evidence supports the jury's or judze's

finding of a statutory aggravating circumstance ..., and

@) the sentence of death is excessive or

mate to the penalty imposed in similar cases,

Se SS Se ee ae Oe the defendant.'” 423 US. at

The identical language appears in § 414 (e). The only significant 1i7erence

between the two caete oR 1 that § 414 (e) contains an additional

determination in paragraph (3

A.45

740 TICHNELL v. STATE

Opinion of the Court. (287 Md.

of murder case, the appeilate review procedures

assure that no defendant convicted under such

circumstances wiil suffer a sentence of death.” 423

U.S. at 206.

Further insight into the purpose and constitutional

necessity of the provisions of § 414 (e) may be gained by

examining the appellate review procedures upheld in

Proffitt v. Florida, supra, 428 U.S. at 242, and in Jurek v.

Texas, supra, 428 U.S. 262. These decisions reveal that the

| absence of a specific provision for proportionality review, as

| found in § 414 (e) (4), will not render a death penalty statute

constitutionally infirm. Proffitt noted that while the Florida

|| statute contained no express provision for proportionalit:

{| review, the Florida Supreme Court considers its review

function to be similar to that of the Georgia Supreme Court,

namely, to

|

“guarantee] that the [aggravating and

mitigating] reasons present in one case will reach a

similar result to that reached under similar

1] circumstances in another case. ... If a defendant is

sentenced to die, this Court can review that case in

light of the other decisions and determine whether

or not the punishment is too great.’” 428 U.S. at

251, citing State v. Dixon, 283 So. 2d 1, 10 (Fla. |

1973).

The Texas statute upheld in Jurek v. Texas, supra, 428 H

U.S. 262, provided for an automatic appeal, but also lacked

an express provision for proportionality review. The Court

nevertheless assumed that death sentences were subject to

this type of review, stating:

“By providing prompt judicial review of the jury’s

| jecision in a court with statewide jurisdiction,

Texas has provided a means to promote the

} evenhanced, rational, and consistent imposition of

death sentences under law. Because this system

© | serves to assure that ser.tences of death will not be

. A. 46

|

TICHNELi v. STATE 4i

aD

re)

in

Uommton of tne Court

‘wantoniy or ‘freakishly’ imposed. it does not

violate the Constitution.” 428 U.S. at 276.

The essential principle underlying the varieties of

proportionality review upheld in Gregg, Proffitt. and Jurex

is, in short, the guarantee that death sentences will be

imposed in a reasonably consister.. manner. See People v.

Frierson, 158 Cal. Rptr. 281. 599 P.2d 587, 610 (1979).

With these principles in mind. the question arises as to

how we are to determine under § 4! ‘e) (4) whether

Tichnell’s sentence “is excessive or disproportionate to the

penalty imposed in similar cases. considering both the crime

and the defendant.’ | Emphasis supplied.) Because this is the

first case to reach us for review under the 1978 death penalty

statute, we are presented with an apparent dilemma of how

to proceed with a comparative review of similar cases. On

the one hand, if we, out of necessity for finding a similar

case, compare Tichnell’s sentence with cases decided under

the constitutionally infirm pre-Furman and pre-Gregg

statutes, we thereby use as the basis of our comparison cases

in which life sentences may have been imposed if they had

been decided under the present statute. Cases tried under

previous Maryland statutes gave the sentencing authority

unbridled discretion in deciding whether life imprisonment

or death was the appropriate punishment. The other horn of

the dilemma is that if no similar cases exist under either the

present or past statutes, then it is impossible to complete the

review mandated by § 414 (e) (4).

There are several ways to avoid the conclusion that the

comparative sentence review mandated by § 414 (e) (4) can

never be implemented. The first ayproach, sanctioned in

Gregg, is to cautiously employ pre-Furman cases in the

comparative review examination. That case recognized that

this practice was a matter of necessity at the inception of a

mew sentencing procedure. 428 U.S. at 404 n. 56. Several!

states have followed this approach. See Jacubs v. State, 361

So. 2d 640, 644-45 (Ala. 1978), cert. denied, 439 U.S. 1122.

99 S. Ct. 1034, 59 L. Ed. 2d 83 (1979); Ross v. State, 233 Ga.

396i, 211 S.£.24 356, 360 (1974); Deutscher v. State, 601 P.2d

A. 47

742 TICHNELL v. STATE

Opinion of the Court [287 Md.

407, 419 (Nev. 1979); Beil v. State. Miss., 260 So. 2d

1206, 1214 (1973), cert. denied. 440 U.S. 950, 99 S$. Ct. 1433,

59 L. Ed. 2d 640 (1979); Smith v. Com., 219 Va. 455, 248

S.E.2d 135, 151 (1978), cert. denied, 441 U.S. 967, 99 S. Ct.

2419, 60 L. Ed. 2d 1074 (1979). Other states have restricted

the scope of comparison to cases decided under

constitutionally approved death penaity statutes. See

Collins v. State, 261 Ark. 195, 548 S.W.2d 106, 122, cert.

denied, 434 U.S. 878, 98 S. Ct. 231, 54 L. Ed. 2d 153 (1977);

State v. White, 395 A.2d 1082, 1095-96 (Del. Supr. 1973);

State v. Martin, 376 So. 2d 300, 312-13 (La. 1979); State v.

Simants, 197 Neb. 549, 250 N.W.2d 881, 890, cert. denied.

434 U.S. 878, 98 S. Ct. 231, 54 L_ Ed. 2d 158 (1977): State v.

Shaw, S.C., 255 S.E.2d 799, 807 (1979), 444 U.S. ¥57,

100 S. Ct. 437, 62 L. Ed. 2d 329.7? Furthermore, most states

restrict their consideration of similar cases to cases decided

under their own state law. See, e.g., Collins v. State, supra,

548 S.W.2d at 122; State v. White, supra, 395 A.2d at 1096;

Moore v. State, 233 Ga. 861, 213 S.E.2d 829, $33 (1975), cert.

denied, 428 U.S. 910, 96S. Ct. 3222, 49 L. Ed. 2d 1218 (1976);

Deutscher v. State, supra, 601 P.2d at 418; State v. Shaw,

supra, 255 S.E.2d at 807; Coppola v. Com., 220 Va. 243. 257

22. In Smith v. Com., supra, the Virginia Supreme Court recognized that

— cases tried under prior constitasionalle defective statutes involved

inonaliy dithount elivases, ta eilitnine 0 Gent contenee enter the

wp apg pe review question i

nes bene to find s similar case in which a life sentence was imposed.

If no such case is found. 2 +eath sentence is assumed to be appropriate. See

State v. Williams, 205 Neb. £6, 287 N.W.2d 18, 29-30 (1979). The Supreme

Court of Lovtisiana in State v. Martin, supra, simply reviewed the evidence,

and even though no similar cases were refi to, found that the death

sentence was not disprocortionate to the penalty im in similar cases.

376 So, 2d at 313. In State v. Simants, supra, 250 N.W.2d at 894, one of the

first decisions under the state's new death penalty statute, the Supreme

TICHNELL v. STATE

jo 40

695) pinion of the Court

| §.E.2¢ 797 (1979). Contra, Bell v. State, supra, 360 So. 2d at

| 1214-15.

An alternative approach to considering pre- Furman cases

is simply to recognize that a system of review that requires

a comparison with similar cases must have a beginning.

State v. Shaw, supra. Under this approach, the reviewing

court nas recognized that the first case under the new

statutory scheme cannot be compared to similar cases that

have been decided under the statute. Under this view, the

first case must stand by itseif, otherwise comparative review

would be impossible — a determination at odds with the

presumption that a jegislative body does not intend to enact

an ineffective and inoperative statute. See. e.g., Swarthmore

Co. v. Kaestner, 258 Md. 517, 525, 266 A.2d 341 (1970);

Welsh v. Kuntz, 196 Md. 86, 98, 75 A.2d 343 (1950).

These difficult questions, as well as others which we do not

here delineate, need not be reached in this case because, as

Tichnell suggests, the death sentence was imposed upon him

under the influence of an “arbitrary factor” in violation of

§ 414 (e) (1). He argues that in selecting Judge Poilitt,

rather than the jury as the sentencing authority, he was

prejudicially misled by a remark made by the trial judge. In

commenting on the sentencing judge’s report to this Court,

as authorized by Rule 772A, Tichnell’s counsel filed an

affidavit which stated that during a trial recess prior to the

completion of the evidence in the case, Judge Pollitt made

the following in-chambers comment in his presence, ard in

the presence of the State’s Attorney: “[H]e thought that the

jury could in the case return a first degree murder verdict,

but that ‘I am not sure this is a death sentence case.’” The

State’s Attorney also filed an affidavit concerning the

23. Other jurisdictions nave considered cases age the murder of a

a See Hoimes v. State. 374 So. 2d S44 (Fla. 1979) (death sentence

a defendant's lack of a criminal record). See also Cade v.

State. Ala. Cr. App., 375 So. 2d 902, aff'd 375 So. 2¢ 32S (1979) (death

sentence me aggravating circumstances outweighed mitigating cir-

A. 49

T44 TICHNELL v. STATE

Opinion of the Court 287 Md.

aileged comment, stating that Judge Poilitt “said in etfect

that he was not sure that the Jury would buy Tichneils

version, but wasn't sure that they would impose the death

sentence or that it was a death sentence case.” In his

affidavit. the State’s Attorney said that the comment “in no

way, inferred to the State's Attorney Judge Puiici's persuinas

feelings, if any, concerning the case.” ‘Emphasis suppiied.!

Judge Pollitt, in a letter to Tichneil’s counsel. included in the

record, stated that he remembered his in-chambers

comment. but that it did not indicate “anv feeling of mine as

to whether the death sentence would be appropriate in tsce

case.” Instead, he said, “I very probably stated in casual

conversation that I was not sure that ajury would be able to

agree on a death sentence, since I had previously

experienced such inability to agree, in a case equally as

serious.”

It is, of course, impossible for us to know whether

Tichrall’s waiver of a jury determination of sentencing was

actually based on a belief, generated by Judge Pollitt’s

remark, that he would not impose the death sentence if he

was the sentencing authority. Tichneli claims that he was

advised of Judge Pollitt’s remark and was influenced by it in

selecting him as the sentencing authority. The arfidavit of

the State’s Attorney attesting tu the words said by Judge

Pollitt supports, rather than detracts, from Tichnell’s

version of the import of the remark. At the least, the remark

was ambiguous and subject to the impression that Judge

Pollitt did not think that the case was one which deserved

the death penalty. Notwithstanding Judge Pollitt’s

contrary recollection of what he said, we think, in the

circumstances, the imposition of the death sentence was

influenced by an “arbitrary factor” under § 414 (e) (1),

requiring that it be set aside and the case remanded for a

new sentencing proceeding under § 413. Tichnel! may, at

the resentencing hearing, exercise the options availabie to

him under § 413 and elect either a jury or a judge as the

sentencing authority. Should he choose the latter, a judge

A. 50

TICHNELL v. STATE 745

695] Concurring Opinion.

|

other than Judge Pollitt should preside, if Tichnell so

requests.**

Judgments affirmed, except as to

the imposition of the death

sentence; death sentence vacated

and case remanded to the Circuit

Court for Wicomico County for a

new sentencing proceeding under

§ 413 of Art. 27; each party to pay

own costs.

|

Cole, J., concurring:

‘I concur in the result, there being, in my opinion, no

necessity to reach the constitutional issues in the case.

'

Davidson, J., concurring: —

| T concur in the result.

| A. 51

Misc. No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

RICHARD DANNY TICHNELL

and

JAMES ARTHUR CALHOUN,

Petitioners

Vv.

STATE OF MARYLAND,

Respondent

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

APPENDIX B

Opinion of the Court of Appeals of Maryland in

Tichnell v. State, 290 Md. 43, 427 A.2d 991

(1981), filed on April 6, 1981 eeeeoeeeveeeeeeeeeeeeeeee

——

TICHNELL v. STATE 43

Svilacus

+

ie)

RICHARD DANNY TICENELL v. STATE OF

MARYLAND

‘No. 60, Septermoer Term, 940!

Decided Apr! 5. i981

Caiminat, Law — First Degree Murder — Sentencing By Jury — Statuce

Governs Jury's Role ln Sentencing Where State Seexs Death Pensity —

Jury Devermines From Admissible Evidence Whether Any Of Enumerated

Aggravaung Circumstances Have Been Estadiished Beyond A Reasonabie

Doubt And Whether, By Prepanderance Of Evidence. Any Of Enumerated

Mitigating Cireumstances Exist — Jury Must impose Life Sentence If No

Aggravating Circumstances Are Found Or if. lt Finds. By Preponderance

Of Evidence, That Mitigating Circumstances Outweigh Aggravating Cir-

cumstances — Code (1957 1976 Repi Voi. 1950 Cum. Supp.’ Art. 27.

te 412414 op 45-47

Causunac Law — First Degree Murder — Sentencing Hearncg ‘Where

State Seeks Deata Penalty — Confrontation Clause Of Sixth Amendment

Heid To Prombit Use Of Pror Recorded Triui Testimony To Prove

Aggravating Or Miugating Circumstances Sefore New Jurv Under Code

(1957. 1976 Repl. Vol., 1930 Cum. Supp: Art 27. ¢ 413 er — Where

Sentencing Jury Did Not Hear Trial Testimony. Live Witnesses Should

Testifv At Sentencing Hearing Absent Showing Of Unavailability. Where

defendant's original death sentence for first cegree murder was vacated on

appeal and a new jury was impaneled to hear evidence of aggravating and

mitigating circumstances in a sentencing hearing. and where there was no

showing that witnesses were unavailabie. the Court Seld that the triai

court erred in admitting, over timely objection. the prior recorded trial

testimony to prove the existence or absence of aggravating or mitigating

circumstances. The case was remanded for resentencing, alter presentation

of relevant testimony through witnesses on the issues to be decided by the

jury under } 413. pp. 43-64

J. ALA.

Review of Sentence ‘Rule 398) from the Circuit Court for

Wicomico County (Taurtt, J...

Richard Danny Tichnel!, having been convicted of first

degree murder, was sentenced to death by a jury pursuant to

Code (1957, 1976 Repl. Vol., 1980 Cum. Supp.) Art. 27, § 413.

B. 4

+4 TICHNELL v. STATE

Opinion of the Court ‘290 Ma.

The Court reviewed the sentence to cetermine if it

comported with statutory and constitutional requirements.

Death sentence vacated. Case remanced for a new

sentencing proceeding under Art. 27.$ 413 Costs to be paid

by the County Commissioners of Garrett County.

The cause was argued before Means, C. J. and Sauvn,

Dicces. Eroripce. Core, Davioson and Rovows«x’. JJ.

Clark B. Frame. with whom was GC. Gary Hanna on the

orief. for appellant.

Deborah K. Handei, Assistant Attorney General, with

whom was Stephen H. Sachs, Attorney General. on the brief,

for appeilee.

Murpuy, C. J., delivered the opinion of the Court.

Davipson, J., concurs in the result.

This case involves Maryland's capital punishment statute.

Maryland Code (1957, 1976 Repl. Vol.. 1980 Cum. Supp.’,

Art. 27, $§ 412-414, and whether the ceath sentence

imposed by a jury upon Rickard Tichnel! comported with

statutory and constitutional requirements.

(Ll)

On January 18, 1979, at approximately 5:25 a.m.. Tichnell

and a confederate, Oscar Recek. broke into a store near

Oakland, Maryland and stole ten handguns. Within minutes

after leaving the store, Tichnell was accosted by Deputy

Sheriff David Livengood, who had been dispatched to the

scene in response to a silent alarm activated by the

storehouse breaking. In the course of their encounter,

Tichnell shot and killed the deputy. Thereafter. Recex and

Tichnell took Deputy Livengood’s police cruiser and led the

scene. They were apprehended later that morning in West

Virginia. At that time, Tichnell admitted to the police that

he had shot Deputy Livengood, but claimed the shooting was

in justifiable seif-defense. In his statement. Tichnel! told the

B. 2

TICHNELL v. STATE 45

+3} Opinion uf the Court.

police that he had submitted to arrest by Livengood and was

directed to lie on the ground under guard by tne deputy's K-9

dog. Tichne!! said that when he moved his head, the dog bit

him in the eye. after which he ran to his nearby car to get

his medical kit to bandage his eye. According to Tichnell’'s

statement, Livengood followed him and without provocation

shot him in the shoulder, propelling him backwards through

the open front door of his car. As Livengood prepared to fire

at him again, Tichnell said he retrieved his own gun, which

was under the front seat of his car. and after the deputy had

fired at him a second time, Tichnei! shot the deputy four or

five times at close range.

Tichneil was indicted on March 2. 1979 for first degree

murder. Pursuant to Code. Art. 27. $ 412 1d». the State

notified Tichnell that it sought imensition of the death pen-

alty.

At Tichnell’s jury trial, the State presented a number of

witnesses to establish that he had murdered the deputy in

cold blood as he was interrupted in his departure from the

scene of the storehouse breaking. Tichnell’s testimony in his

own behalf was consistent with the statement which he had

given to the police at the time of his arrest. The oniy

eyewitness to the shooting, Oscar Recek, was also indicted

for the offense and did not testify. The jury rejected

Tichneil’s version of the killing and found him guilty of

wilful, deliberate and premeditated first degree murder.

Tichnell elected to be sentenced by the trial judge, rather

than by the jury, as authorized by $ 413 (b) (3). The judge

imposed the death penalt, . On appeal. we affirmed the judg-

ment of conviction but vacated the death sentence on the

ground that it had been imposed under the influence of an

“arditrary factor” in violation of } 414 ‘e) (1). Tichaneil v.

State, 287 Md. 695, 415 A.2d 830: 1950). As required by the

provisions of § 414 (f) (1) \ii), we remanded the case “for a

new sentencing proceeding under § 413.” Jd. at 748.

On remand, Tichnell elected to be resentenced by a new

jury, as authorized by § 413 (b)/2) iv’. It was the sole func-

tion of the jury to determine whether Tichne!! should be

B. 3

46 . TICHNELL v. STATE

Opinion of the Court ,290 Md.

sentenced to death or life imprisonment. 2 415 ‘a). In

making that determination, the jury was governed by var-

ious subsections of § 413. The “type of evidence” admissible

at the sentencing hearing is delineated in § 413 ‘c::

(i) Evidence relating to any mitigating circum-

stance listed in subsection ‘g):

(ii) Evidence relating to any aggravating circum-

stance listed in subsection ‘d) of which the State

had notified the defendant pursuant to § 41210):

(iii) Evidence of any prior criminal! convictions,

pleas of guilty or nolo contendere, or the absence of

such prior convictions or pieas, to the same extent

acmissibie in other sentencing procedures:

(iv) Any presentence investigation report. Row-

ever, any recommendation as to sentence contained

in the report is not admissible: and

(v) Any other evidence that the court deems of

probative value and relevant to sentence. provided

the defendant is accorded a fair opportunity to reout

any statements.”

Under § 413 (d), it is the province of the sentencing jury to

determine from the evidence whether any of the aggravating

circumstances enumerated in that section, and relied upon

by the State for the imposition of the death penalty, have

been established beyond a reasonable doubt.' Under § 413

1. Section 413 (d) sets forth ten aggravating circumstances. :.¢.:

“(L) The victim was a law enforcement officer who wus

murdered while in the performance of his duties.

(2) The defendant committed the murder ai + time when ne ts

confined in any correctional institution.

(3) The defendant committed the murder in furtherance of an

escape or an attempt to escape from or evade she lawful custody.

arrest, or detention of or by an oificer or guard of 3 correctional

ineticution or by a law enforcement officer

(4) The victim was a hostage taken or attemoted to be taken in

ee course of a kidnapping or abduction or an astempt to kidnap or

abduct.

(5) The victim was a child abducted in violation of § 2 uf this

article.

au. 4

43] Opinion of the Court

igi, the jury is required to determine. by a preponderance of

the evidence, whether any of eight enumerated mitigating

cireumstances exist.” Should the jury not find. bevond a rea-

sonable doubt, the existence of one or more aggravating cir-

cumstances, it is required to impose a life sentence. $ 413 'f).

Should the jury find the existence of both aggravating and

mitigating circumstances, it then must determine. by a

preponcerance of the evidence, whether “the mitigating cir-

cumstances outweigh the aggravating circumstances.”

§ 413 th) (1). [If the jury finds “that the mitigating circum-

stances do not outweigh the aggravating circumstances. the

sentence shail be death.” § 413‘h)'2). [fthejury finds “that

the mitigating circumstances outweigh the aggravating

circumstances, the senténce shail be imprisonment for life.”

§ 413 +h) 13).

(6) The defendant committed the murder pursuant to an

agreement or contract for remuneration or the promise of remu-

neration to commit the murder

(7) The defendant engaged or emnioved another person to

commit tne murder and the murder was committed pursuant ‘to

an agreersent or contract for remuneration or tne promise cf -e

muneratiion.

(S) At the time of the murder. the defendant was under sentence

of death or imprmsonment for life

(9) The defendant committed more than one offense of murder in

the first degree arising out of the same incident.

(10) The defendant committed the murder while committing or

attempting to commit roboery. arson. or rape or sexuai offense in

the first degree.”

2. Section 413 (g) sets forth the foilowing mitigating circumstances:

"(1) The defendant has not previous!» ‘i: been ound guilty ofa

crime of violence: (ii) entered a plea of guilty or nolo contendere to

a charge of a crime of violence; or iii) had a judgment of probation

on stay of entry of judgment entered on a charge of a crime of

violence. As used in this paragraph, ‘crime of violence’ means

abduction, arson. escape, kidnapping, manslaughter, except

involuntary manslaughter, mayhem, murder, rodbery, 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.

(2) The victim was @ participant in the defendant's conduct

or consented to the act which caused the victim's death.

(3) The defendant acted under substantial duress. domination

or provocation of another person. but not so substantial as to

constitute a complete defense to the prosecution.

B.

71

48 TICHNELL v. STATE

Opinion of the Court. |280 Md.

(3)

At the outset of Tichnell’s resentencing hearing, the trial

judge stated that he intended to adhere to his decision, made

earlier at a conference with counsel present. to rave the

transcript of Tichnell’s trial read to the jury. He said that

"short of having a full-blown trial, there was no other way

to proceed.” The trial judge said that Tichnel! could object ¢

the reading of any part of the trial transcript and he would

rule on the objection at that time. Tichneil entered a

“vociferious objection” to reading the transcript of the trial

proceedings to the jury. He argued that 3 413 ‘c) explicitly

sets forth the “type of evidence” that could be admitted at the

sentencing hearing, and did not include the introduction of

the prior recorded trial testimony, as contained in the trial

transcript. He said that the transcript would reveal, to his

grievous prejudice, the commission of other criminai of-

fenses for which he was neither charged nor convicted. He

argued that the jury “is going to necessarily pass on the

credibility of the witnesses with reference to whether or not

aggravating circumstances and or mitigating circumstances

exist.” He maintained that the federal constitution

safeguards his right to have the sentencing jury “see the

witnesses fand) ... for us to adduce any additional

cross-examination, which could be entireiy different now

than it was.” The court overruled Tichnell’s” objection.

stating that he could “rebut any testimony under the rules

and under the law.”

(4) The murder was committed while the capacity of the

to appreciate the criminality of his conduct or *%o

conform his conduct to the requirements of !aw was substantiaily

impaired as a result of mental incapacity, mental disorder.

disturbance, or intoxication.

(5) The youthful age of the defendant at the time of the crime.

(6) The act of the defendant was not the sole proximate cause

of the victim's death.

(7) It is unlikely thac the defendant wil! engage in further

criminal activity that would constitute a continuing threat to

society.

(8) Any other facts which the jury or the court specifically sets

forth in veriting that it finds as mitigating circumstances in the

case.

£6

TICHNELL v. STATE +9

43) Osinion of ‘he Cuurt

After the jury was sworn. the triai judge advised it that

Tichnell’s guiit of first degree murcaer had been previously

established and the jury was “merely .. to determine the

sentence”; that the transcript of Tichnel!’s criminai trial

would be read to the jury: that the State could “expand upon

that, if they have any further evicence of any probative

value, and the defense, of course. may rebut and put any

mitigating circumstances on which they think are probative,

after which you will hear argument of counse!.”

The prosecutor outlined his version of the evidence that

would be established from a reading of the trial transcript.

He told the jury that he would prove the existence of two

aggravating circumstances under $ 413 ‘d), namely, that

Livengood was a law enforcerrent officer killed in the per-

formance of his cuties, and that the murder was committed

in furtherance of an escape or an attempt to escape from or

evade lawful arrest by a law enforcement officer. !n his

opening statement, Tichnel!'s counsel outlined his version

of the evidence adduced at the triai. He conceded that

Livengood was a law enforcement officer killed in the per-

formance of his duties. Dut denied that the evidence would

establish that the killing toox place during an escape or an

attempt to evade Livengood’s lawful custody. Tichnell told

the jury that the evidence would establish these mitigating

circumstances: that he had no prior criminal record; that the

victim was a participant in his (Tichnell’s) conduct; that he

acted under substantial duress or provocation; that he was

of a youthful age; that his act in killing the deputy was not

the sole proximate cause of the deputy’s death; and that

since he (Tichnell) would be in prison for life, he would not

be a continuing threat to society.

After opening statements were completed, the trial tran-

script was introduced into evidence over Tichnell’s objection

and two court reporters undertook to read the questions and

answers of the witnesses at the trial to the sentencing jury.

The testimony of seven State witnesses was read to the jury

with few objections being made by Tichneil. The testimony

of another State witness implicating Tichnell in the commis-

ee,

50 TICHNELL v. STATE

© -ymion of che Court 1290 Mad.

sion of other crimes was objected to and was not read to the

jury. A dispute then arose as to the “ground ruies.” each

counsel stating a different view of what was to be done when

they could not agree on the relevancy of the prior recorded

testimony of the witnesses. At the courts urging, counsei

agreed to consider stipulating as to the relevancy of the

testimony of the remaining witnesses who testified for the

State at the trial. At this point, the prosecutor moved for

permission to produce live witnesses to complete the

presentation of his case to the sentencing jury: the triai

judge denied the request. A: the same t::ne, the court said

that it was not limiting anyone in the presentation of

relevant testimony. The court noted that the procedure of

reading the transcript to the jury was subject to Tichnell’s

objection and this was so even though he egreed to stipulate

to certain evidence being read to the jury from the tran-

script. The prosecutor objected to the procedure being

followed by the court, stating that it was his understanding

that the entire transcript and all the trial exhibits would be

presented to the jury. At this juncture, the court said:

"Il am attempting to let this jury have some of the

facts, enough so they can determine. one. that the

deceased was a police officer in the performance of

his duties; two, that there was an escupe or attempt

to escape from lawful custody. which are the ele-

ments you have alleged entitled the State of

Maryland to request the death penalty. Anything

other than that, I don’t consider relevant.”

The court said that the entire transcript would not be read

to the jury but only those parts which were relevant. It told

Tichnel! that he could offer the testimony of any live wit-

nesses that he might wish to call and that the State also

could offer additional testimony, other ‘han of witnesses

whose testimony was included in the tri: transcript. This

exchange resulted in Tichne!!'’s counse! claiming that he was

being “whipsawed, with the State trying t» change the rules

in the middle of the stream.” The court ther remarked: “We

are gcing to proceed as we started out You may proffer any

witnesses you wish.”

_ 4.8

TICHNELL v. STATE 51

43} Cpimion of the Court

Both the prosecutor and Tichnell’s counsei expressed

continuing dissatisfaction with the procedure being

followed. The trial judge again remarked that no other

procedure could be utilized. Thereafter. counsel agreed to

stipulate to the releve-cy of the testimony of the remaining

State witnesses who had testified at the trial, as well as to

the admissibility of certain photographic and other trial

exh’ its.

After the State concluded its case-in-chief, Tichnell

testified before the sentencing Jury. His testimony was con-

sistent with his testimony at the trial, the thrust of which

conformed with his statement given to the police at the time

of his arrest, i.e., that after the storehouse breaking he was

apprehended by the deputy and submitted to arrest; that he

was not attempting to escape or evade lawful custody wien.

after he was bitten by the officer's K-9 dog, he went to his car

to bandage his eye; that the officer followed him there anc

shot him through the shoulder without provocation: and that

it was only to save his own life that he shot and killed the

deputy sheriff. In his testimony, Tichneil undertook to pro-

duce evidence of mitigating circumstances, as enumerated

in § 413 (g). Tichnell’s wife and mother testified in his

behalf.

The court permitted the prosecutor to call one live rebuttal

witness to testify — a forensic chemist who sought to rebut

Tichnell’s testimeny that the shooting was at point-blank

range. It was the chemist’s testimony that because there

were no powder burns on the shoulder portion of Tichnell’s

jacket, the shooting could not have occurred consistent with

Tichnell’s version of the event.

The trial judge then instructed the sentencing jury. He

said that because the jury had not heard the evidence in the

original case, counsel and the court had attempted to give

the juvy “at least the basic facts as they were presented to

that previous jury.” He reminded the jury that it “did not see

or hear. save for a few, the actua! witnesses or the testimony

as it was originally presented.” Having perts of the trial

transcript read to the Jury Was. ‘ie trial judge said, “she only

8.3

TICHNELL v. STATE

wr

to

Opinion of tne Court 290 Ma.

way the Court could see to produce the actuai testimony as

it was given.” The court continued:

“Obviously, with human frailtes. had we

brought the witnesses back there may be some vari-

ance in the testimony. But we felt that vou were

entitled to hear, even though you didn't hear it from

the actual mouths of the witnesses. the testimony

as it was produced at the previous trial.”

The court fully instructed the jury. consistent with the

language of § 413 as to the burden of proving the existence

of aggravating and mitigating circumstances. as well as the

consequences of the jurv’s determination. Following

extended closing arguments of counsei. the jury found the

existence of the two aggravating circumstances relied upon

by the State: (1) that the victim was a law enforcement

officer who was murdered in the performance of his duties,

and (2) that the defendant committed the murder in fur-

therance of an escape from or an attempt to escape from or

evade lawful custody by a law enforcement officer. The jury

found three mitigating circumstances to exist: (1! that the

detendant had not previously been convicted of a crime of

violence, (2) that the defendant acted under substantial

duress, domination or provocation of another person, but not

so substantial as to constitute a complete defense to the

prosecution, and (3) that it is unlikely that the defendant

will engage in further criminal activity that would consti-

tute a continuing threat to society. The jury found that it

was not proven by a preponderance of the evidence that the

mitigating circumstances outweighed the aggravating cir-

cumstances and accordingly. pursuant to $ 413 ‘h) (2), the

jury sentencea Tichnell to death.

13)

Tichnell contends on appeai that the action of the trial

court in admitting the transerivt of the criminal trial over

his objection violated $ 413 ‘c!, which limits the “type of

evidence” admissible at a capital sentencing hearing. Addi-

B. 10

43] Opinion of the Court

tionally, he claims that the admission of the transcript at the

sentencing hearing denied him the right of confrontation

and cross-examination in violation of the Sixth Amendment

to the federal constitution.’ He also argues that the

sentencing proceeding was a critical stage of the trial pro-

ceedings at which due process and fair trial principles appiy.

The key issue at the sentencing hearing, ‘t is argued,

concerned whether there was proof beyond a reasonable

doubt that Tichnell was escaping or attempting to escape

from or evade lawful custody when the deputy was shot and

killed. Tichnel! urges that the use of prior recorded trial

testimony as a means to prove this statutory aggravating

circumstance offended his confrontation and due process

rights because it was not shown that the witnesses were

unavailable to testify at the sentencing hearing. Moreover.

Tichneil suggests that the trial judge was erroneous in his

belief. as expressed in his instructions to the jury, that it was

the court’s responsibility to produce before the jury “ths

actual testimony as it was given” at the trial.

The State contends that it was within the discretion of the

trial judge to restrict the prosecution to the presentation of

evidence through reading of portions of the earlier

transcribed testimony. While the State agrees that Tichnell

was entitled to due process at his capital sentencing hearing,

and that it would have been preferable had the prosecutor

been permitted to present live testimony from al! who

testified at the original trial, nevertheless it maintains that

Tichnell was not denied any statutory or constitutionai

rights by the procedure utilized by the trial judge.

According to the State, § 413 contemplates that the cap-

ital sentencing proceeding wi!! ordinarily be conducted

before the same jury tha: determined the defendant's guilt.

and would therefore have before it a!! the evidence presented

in the case. In such circumstances. the purpose of the sepa-

rate sentencing hearing would be to provide an opportunity

to present acditional evidence as to the existence of

3%. “In all criminal crosecutions. the accused shall enjoy the mgnt... to

be confronted with the witnesses agains: him ?

B14

Opinion of tne Court '2S0 Ma.

aggravating and or mitigating circumstances. But where, as

here, the sentencing tribunal has not heard the evidence

proving the commission of the murder. the State points to

the need for some mechanism for providing information

about the crime itself. In the present case. the State contends

that it was the purpose of veading the transcript of the prior

trial to acquaint the jury with the circumstances of the of-

fense so that, with whatever additional evicence was avaii-

able. the jury could. properly determine whether the

sentence would be death or life imprisunment.

The State argues that the prior recoried trial testimony

read to the jury had been given under »ath. with Tichnell

present to confront and cross-examine tn witnesses against

him. Most of the witnesses who testifieu for the State, it is

suggested, described objective observitions about which

there was little dispute. It is therefore arzued that this is not

a case. like Gardner v. Florida. 430 U.S 449. 97S. Cs. 1197,

31 L. Ed. 24 393 (1977), upon which Tich ell places vetiance.

where a death sentence was vacated bec .use it was based in

part on information contained in a presentence report not

revealed to the defendant or his cour-ei. and which the

defendant had no opportunity to deny -r reout. Tichneii’s

right of confrontation was satisfied. the ~tate urges, cespite

the fact that the prior recorded testimeny was used at the

sentencing hearing, because he wa- present at the

sentencing hearing and had ample oppe: tunity to refute or

explain the evidence as it was there presented. The State

argues that under Ohio v. Roberts. +48 U.S. 56, 100 S. Ct.

2531, 63 L. Ed. 2d 597 (1980), a showing of unavailability of

the witnesses is not required where confrontation wouid

serve no useful purpose. Because confrontation of live wit-

nesses at the sentencing hearing would not have served a

useful purpose in this case. the State concludes that the

reading of the prior testimony of Tichnell’s criminal trial

fully satisfied his due process rights.

t4)

We said in Crawford v. State. 252 Md. 210. 283 A.2d L087

(1978), with full citation to controiling Susreme Court <eci-

B.12

TICHNELL v. STATE

cn

or

43] Opinion of the Court.

sions. and to our own cases. tha’ the Sixth Amendment right

of am accused in a criminal case to confront the witnesses

against him is a fundamental constitutional right made

obligatory on the states by the Fourteenth Amendment to

the federal constitution.* We said. citing State v. Collins.

265 Md. 70, 288 A.2d 163 (1972). that the same right is

secured by Article 21 of the Maryland Declaration of Rights.

We noted that the primary interest secured by the

confrontation clause is the right of cross-examination and

that an adequate opportunity for cross-examination at the

earlier proceeding may satisfy the clause in the absence of

physical confrontation at the later proceeding. However, for

the testimony taken in the former proceeding to be admissi-

ble at a subsequent proceeding. we said that both the state

and federal! constitutions, as well as Maryland common law,

ordinarily require proof that the witness whose prior testi-

mony is to be used is unavailabie to testify.

It is well recognized that the right to confront and

cross-examine the witnesses against the accused insures the

accuracy of the fact-finding process by testing the witnesses’

credibility. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39

L. Ed. 2d 347 (1974); Califormia v. Green, 399 U S. 149, 90

S. Ct. 1920, 26 L. Ed. 2d 48911970): Barber v. Page, 390 U.S.

719, 88S. Ct. 1318, 20 L. Ed. 2d 255 ' 1968). Ohio v. Roberts,

supra, upon which the State places reliance — we think

erroneously — involved the use of the prior recorded prelimi-

nary hearing testimony of a witness at the subsequent crim-

inal trial. The accused objected on the ground that such use

violated the confrontation ciause of the Sixth Amendment.

The Supreme Court there said, referring to or quoting from

earlier of its decisions, that the clause reflects a preference

for face-to-face confrontation at trial: that the primary inter-

est secured by the clause is the right of cross-examination:

that it is the literal right to “confront” the witness at trial

that forms the core of the values furthered by the

confrontation ciause; and that the ciause envisions a

4. See Dutton v. Evans. 400 US. 74.91 S. Cz. 210. 27 L. Ed. 24 213 (1970);

Pointer v. Texas, 280 ''.S. 400, 45 S Cr. 1063, 13 L. Ed. 24 923 11968).

TICHNELL +. STATE

we

be 5)

Opinion of tne Court 290 Md.

personal examination and cross-examunation of the witness.

mn which the accused has an opportunity. not oniy of testing

the recollection and sifting the conscience of the witness, out

of compelling him to stand face to face with the jury in order

that the jurors may look at him. and judge by his Gemeanor

upon the stand and the manner in which he gives his test!-

mony whether he is worthy of belief. The Court said that

these means of testing the accuracy of the witness testimony

are so important that the absence cf proper confrontation at

trial calls into question the ultimate integrity of the

fact-finding process. The Court pointed out that, oy

necessity. former recorded -estimony ‘was admissidie at a

subsequent trial as long as cross-examination was permitted

at the earlier hearing. and it was shown that the witness

whose prior testimony was introduced was not available to

testify at the later proceeding. The Court said that the

confrontation clause “normally requires a showing that ithe

witness} is unavailable” and. even then, his testimony 1s

admissibie only if it bears adequate “ ‘indicia of reliability. ~

100 8. Ct. at 2539.

Whether these principles apply to the use of prior recorded

trial testimony at a sentencing hearing under Marvlana’s

capital sentencing statute Is the nub of the issue before us.

In this connection. it is undisputed that the prosecution wit:

nesses who testified at Tichnell’s trial were available to tes-

tify at the sentencing hearing.

The Supreme Court has considered the application of the

confrontation and due process clauses to criminal! sentencing

hearings in a number of cases. Williams v. New York. 337

U.S. 241, 69 S. Ct. 1079. 93 L. Ed. 1337 : 1949), involved a

first degree murder conviction by ajury which recommended

a sentence of life imprisonment. After receiving @

presentence report and conducting a separate sentencing

hearing, the trial jucge imposed the death sentence.

Although the petitioner did not challenge the accuracy of the

judge’s findings or seek an opportunity to rebut them, he

contended on appeal that he hac been Genied due process

because he was unable to cress-examine the authors of the

TICHNELL v. STATE

con

43) Opinion of the Court

nresentence report. The Supreme Court discussed the need

for the sentencing ‘udge to possess the “fullest information

possibie concerning the cerencant s life and characteristics”

so that the sentence would tit the offender and not just the

crime and contrasted this purpose with the protective

purposes of the rules of evidence tn criminal trials. Id. at 247.

After concluding that much of the information contained tn

the presentence report would be unavailabie to the

sentencing authority if it was restricted to information pro-

duced in open court by testifying witnesses subject to

cross-examination, the Court said:

"(Wile do not think the Federa! Constitution

restricts the view of the sentencing judge to the

information received in open court. The due-process

clause should not be treated as a device for freezin

the evidential procedure of sentencing in the mold

of trial procedure. So to treat the due-process clause

would hinder if not preclude ai] courts — state and

federal — from making srogressive efforts to

improve the administration of criminal justice.” Jd.

at 251.

In Williams v. Oklahoma. 358 U.S. 576. 79 S. Ct. 421, 3 L.

Ed. 2d 516 (1959), the petitioner pied guiity to kidnapping

and did not request a seperate. formal sentencing hearing.

He was sentenced to death after the prosecutor read a

statement of facts to the court concerning the various crimes

committed by the petitioner and his past criminal record.

Citing Williams v. New York, supra, the Supreme Court

held that the reading of the statement of facts did not

deprive the petitioner of his constitutional right of

confrontation and cross-examination as it was permissible

and consistent with the requirements of due process for the

sentencing judge to use information gathered outside the

courtroom to determine a proper sentence. Id. at 584.

In Specht v. Patterson, 386 U.S. 80£, 87 S. Cz. 1209, 18 L.

Ed. 2d 326 (1967), the petitioner was convicted of a sexual

offense and on the same day, without notice or a hearing,

was also sentenced to an indeterminate period under the

$.15

TICHNELL v. STATE

ue

mm

* . s 4

Opinion of the Court (290 Ma.

Colorado Sex Offenders Act. The petitioner contended that

he was denied due process because his right to confront and

cross-examine adverse witnesses had been denied. Althougn

the Supreme Court stated ts continued adherence to

Williams v. New York, supra, it declined to extcnd the prin-

cipies of that case to “this radicaliy different situation”

because after the petitioner received his initial conviction.

he was also sentenced under another proceeding which

involved a new finding of fact. Id. at 608. In these circum-

stances, the Court held that due process required that the

petitioner have an opportunity to confront and

cross-examine the witnesses against him.

In Gardner v. Florida. 430 U.S. 349. 97 S. Ct. 1297, 51 L.

Ed. 2d 393 (1977, the petitioner was convicted of first degree

murder and was sentenced to death after a separate

sentencing hearing. He contended that he had been denied

due process because neither he nor his attorney was given

access to part of the presentence report. The Supreme Court.

in a plurality opinion, stated that the huiding of Williams v.

New York was not applicable because in that case the

sentencing judge related the materia! facts on the record and

the petitioner failed to challenge therm. and because ‘he

Court now recognized the uniqueness of the death penalty as

punishment, id. at 356-57. It held that because the

sentencing process must also satisfy the requirements of the

due process clause, the petitioners right to that

constitutional guarantee was denied when his death sen-

tence was based in part upon information which he had no

opportunity to rebut.

Although Gardner required that sentencing hearings con-

form to due process standards. the Court noted that “[tihe

fact that due process applies does not. of course. implicate

the entire panoply of criminal! trial precedural rights.” Jd. at

358. The case indicates that if a presentence report 1s fully

disclosed and opportunity is given the defendant to explain

or rebut it, its use during a capital sentencing proceeding

would not constitute an abuse of due precess. Thus. it

appears that Gardner did not overrule the hoiding in

Williams that the constitutional right of controritation coes

mot proscrite the use of presentence reports in capitai

sentencing proceedings.

Nothing in Williams or its progeny governs whether. in

the circumstances of the present case. Tichnel!l was denied

his right of confrontation or cue process by reason of th

introduction of the prior recorded triai test:mony. As aiready

indicated, the Maryiand capital sentencing statute requires

a bifurcated proceeding: ‘1) the trial to determine the

accused's guilt of the offense charged nd ‘2) a separate

sentencing hearing, if the accused is found guiity. to deter-

mine whether the penalty shou!d ce life imprisonment or

death. The sentencing phase of the proceeding involves‘1l)a

determination by the sentencing authority of whether the

aggravating circumstances relied upon by the State to

justify imposition of the death sentence have been estab-

lished by the evidence beyond a reasonable doubt and‘2)a

determination of whether mitigating circumstances upon

which the defendant has placed reliance have been estab-

lished Dy a preponderance of the evidence. Thus, the issue fo

determination is different in each proceeding, although

manifestly a by-product of the evidence adduced at the trial

will reveal, to some extent at least. the existence or absence

of aggravating andor mitigating circumstances. The

ultimate issue to be decided by the sentencing authority,

where both aggravating and mitigating circumstances are

shown to exist, is whether, by a preponderance of the evi-

dence, the mitigating circumstances outweigh the

aggravating circumstances; if they do not, the death penaity

must be imposed.

The “type of evidence” adducible at the sentencing

hearing, as outlined in § 413 ic), includes. in addition to

evidence pertaining to mitigating and aggravating circum-

stances, and the presentence report, “other evidence”

deemed by the court to be “of probative vaiue and relevant

to sentence, provided the defendant is accorded a fair oppor-

tunity to rebut any statements.”

In the usual case in which the prosecutor seeks the death

penaity and obtains a qualifying first degree murder con-

vietion, the trial judge and jury which heard the evidence at

8. 17

TICHNELL v. STATE

D

o>

Opinion of the Court (290 Me.

tria! will also be involved in the subsequent sentenc:ng pro-

ceeding; therefore. they will de full conversant with the evi-

dence introduced prior to the commencement of the

sentencing hearing. However. where an accused elects a

court trial. but after conviction elects to be sentenced by a

jury. as authorized oy § 413 1b) ‘2) ‘ui. the sentencing jury

wiil have no prior knowledge of the evicence produced at the

trial. The same situation prevails where. as here. the

orginal death sentence was vacated on appeal and a new

jury is impaneled to hear the evidence at the sentencing

phase of the proceeding.

The trial judge apparently believed that it was essential

that the transcript of the prior trial testimony be introduced

in evidence so that the sentencing jury would have before it

the identical testimony that was produced before the fact

finder at the guilt stage of the proceeding. He thus declined

in the first instance to permit the State to discharge ::s

burden of proving the existence of aggravating circum-

stances through the testirrony of the same witnesses who

test'fied at the trial ever though. as the State candidly

adr-itted at oral argumen. before us. it wanted to produce

live witnesses at the sentencing hearing to enhance its

chances of convincing the jury bevond a reasonable coubt

that aggravating circumstances existed which were of such

gravity as would justify impositicn of the death penalty. The

trial judge !ater indicated that the State could “expand” on

the prior recorded testimony previously introduced in evi-

dence before the sentencing jury; that Tichnell could objec:

on relevancy grounds to any of the State's evidence as intro-

duced through a reading of the trial transcript, or could

otherwise rebut it; and that Tichneil could also produce evi-

dence to show the existence of mitigating circumstances.

Tichnell’s cbjection to the precedure mandated dy the trial

judge was based. in part, upon his argument that the evi-

dence pertaining to the existence of aggravating and cr

mitigating circumstances involved witness credibility and

demeanor and therefore the jury had to consider live testi-

mony, subject to cross-examination. rather than the sterile

reading of the trial transcript.

B15

TICHNELL v. STATE

for)

es

43} Opinion of the Court

To persuade the jury to imsose a life rather than a death

sentence, Tichneil wanted to conv'nce it that the mitigating

circumstances outweighed the aggravating circumstances.

The heart of Tichnell's case before the sentencing jury was

that he shot Deputy Livengood in self-defense at point-blank

range as the two men struggled at the open door of Tichnell’s

car. The State's theory of the case was that Tichnell. to avoid

apprehension. ambushed the deputy and shot him in the

back — not in a face-to-face confrontation at the door of the

car — but from a distance greater than three feet. as evi-

denced by the fact that no powder burns were found on the

clothing of either Tichnell or Livengood. The trai testimony

of the State’s witness, Wolfe. if believed by the sentencing

jury, was, for example, wholly inconsistent with Tichnell’s

version of the shooting.® Five spent sheils found in close

proximity to the deputy’s body constituted evidence tnat he

had been shot at some distance from where Tichnell’s car

was located. Other evidence adduced by the State, through

the testimony of its witnesses at trial, permitted a Jury to

rationally find that the shooting could not have occurred as

Tichnell said it did. See Tichnei/ v. State, 287 Md. at 700-09

and 719-20. Had Tichnell been believed on the other hand,

the jury would not have found him guilty of premeditated

first degree murder. Witness crecibility was therefore of

extreme importance, both at the trial and at the sentencing

hearing.

The practical burden which Tichneil faced was to demon-

strate to the sentencing jury, during presentation of the

State’s case on aggravating circumstances, that the shooting

did not occur, as the prosecution claimed. in furtherance of

an escape or attempt to evade or escape from lawful custody.

It was of vital importance to Tichnel! that he entirely negate

that critical aggravating circumstance, or otherwise lessen

its gravity, or obtain some corroboration of his own testi-

mony, and hence favorably affect the weight which the jury

would give to the aggravating circumstance in the ultimate

5. Wolfe's house overlooked the scene of the shooting. At trial. he

testified to hear:nz a burst of gunfire. followed almost :mmediately by the

sound of spinning wheeis and a simuitaneous voiley of additional shots.

£19

D

tw

J

3

=e

owe

y

CC

{

c

ni

4

ys

4

:

° ‘ .

Yormon of the Court 930 Md.

weighing process. Tichneils abiiity to du so Mainiy depenced

on an opportunity to cross-examine the Stute s witnesses and

to thereby convince the sentencing jurs that the testimony

of those witnesses was not cred:Die. Manifestiy, this probing

of the strength of the State's case on aggravating circum:

stances could not be achieved absent testimony from live

prosectition witnesses. Moreover. Tichnell’s need in the first

instance to cross-examine the State's witnesses in an effort

to weaken the strength of the prosecution's case bore impor-

tantly on his own testimony as to mitigating circumstances

and, in particular, under 412‘) (3), whether in killing the

deputy he acted “under substantial duress, domination or

provocation of another person. Dut not so gubstantial as to

constitute a complete defense to the prosecution.” In the

overall, the demeanor and credibilits of the Stutes wit-

nesses, as well as his own. was of critical importance to the

sentencing jury in determining whether aggravating Cir-

cumstances existed and, if so. whether the mitigating cir-

cumstances outweigned the aggravating circumstances.

Indeed, it was a matter of life or death,» the gravest import,

not just to Tichnell but to society itseit

Our research discloses no case ike that now before us,

challenging the admission in evicence | prior recorded trial!

testimony to sustain the State's burden demonstrating the

existence of aggravating circumsta:.ces. at 2 separate

sentencing hearing. under a capital sentencing statute. Of

some significance, however. 1s Bradv » State, 226 Md. 422.

174 A.2d 167 (1961), a case in which Brady and a

confederate, Boblit, kad cummitted a mu-zder in the course of

a robbery. Brady was found guilty by u jury of first degree

murder. under a then existing statute. the jury could have,

but did not. add to its guilty verdict the words “without

capital punishment.” Hae it done so. tt.e sentencing judge

could not have imposed the death penuity After the trial!

judge sentenced Brady to Jeath. Brady lied a post conviction

petition claiming that at Ris trial the State withheld evi-

dence from the jury that Sodlit confesses that it was he. and

not Brady, that had actually murder-¢ the victim. We

concluded that the withholding of Bobi.ts confession from

B. =

43 Opinion of ife

the jury prejudiced Sradv Sut only as to the sentence

imposed upon him. We said tnat if Bubiits withheld

confession had been before the jury nothing in it could have

reduced Brady's offense beiow murcer in the first degree and

consequently there was no reason to retry that issue. We

said (226 Md. at 430):

“Brady is entitled to have a jury empaneled to

determine whether the finding already made of

guilty of murder in the firs: degree shou!d or snouid

not be modified by the addition of the words

‘without capital punishment’: and to that end any

admissible evidence bearing on that question

should be submitted to the jury which either the

State or the defendant may deem it appropriate to

present. This may require to a large extent a dupll-

cation of the evidence submitted at the first

trial... .” ‘Emphasis supplied.

The emphasized language tends to indicate that the Court

contemplated that the witnesses at trial would be required

to testify at the sentencing hearing before the new jury, at

least absent a showing of unavaiiability

Absent agreement of the parties, or a showing of

unavailability of the witnesses to testify at the separate

sentencing hearing, we conclude that § 413 ‘c) does not

permit, over timely objection, the admission in evidence

before a new sentencing jury of the prior recorded tria! testi-

mony to prove the existence or absence of aggravating or

mitigating circumstances. That the State’s witnesses were

available and desired to testify before the sentencing jury is

conceded by the State: therefore. the lower court erred in

admitting the challenged evidence and a new

This text is long and has been trimmed here. Open the source document for the complete record.