# Appendix — Tichnell v. Maryland > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1780%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 466 U.S. 993 ## Text 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 . 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 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 sentencing hearing is necessary. On remand. the triai judge should permit the State to produce whatever relevant and admissi- ble evidence it may wish to present to the sentencing jum ° bees through the testimeny of its witnesses. Manifestly. there is b. 2 64 TICHNELL v. STATE Opinion of the Court '290 Md. no requirement that this evidence be a caroon copy of that presented at the guilt stage of the bifurcated proceeding.° Tichnell raised six other obdject:ons to the imposition of the death sentence in this case Three were raised and found without merit in Tichnei/l v. State. supra. Another claimed that tre second sentencing hearing constituted double jecp- ardy. Still another claimed a deprivation of the right to coun- sel. There was also a contention of prejudice by adverse newspaper publicity on the morning of the commencement of the second hearing. None of the contentions is supported by serious argument, and ail are without merit. Death sentence vacated; case remanded for a new sentencing proceeding under 3 413 of Article 27: costs to be paid dv the County Commissioners of Garrett County. Judge Davidson concurs in the result. 6. Without discussion as to the effect of the confrontation clause on the use of prior recorded testimony, the Virginia Supreme Court, in three cases. summaniy approved the introduction oi trial transcripts at capital sentencing hearings. See Fogg v. Commonweaith, 215 Va. 164, 207 S.£.2d 847 (1974); Huggins v. Commonwealth, 213 Va. 327, 191 S.E.2d 734 (1972i; Snider v. Cox, .12 Va. 13, 181 S.£.2d 617 (1971). Misc. No. 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 APPENDIX C Opinion of the Court of Appeals of Maryland in Tichnell v. State, 297 Md. 432, A.2d (1983), sane. Ge movenper: 3, 290s i6ss 0s 60640000 ewkeence 432 TICHNELL v. STATE Syllabus. [297 Md. RICHARD DANNY TICHNELL v. STATE OF MARYLAND No. 3. September Term, 1982.! Dee:ded November 3. 1983 Constitution ai. Law — Camunat Law — Jury Seiection — Accused Has Right To [mpartiai Jury — Jurv Selection Process -fust Saust: Essential Demands Of Due Process Under Fourteenth imencment — Voir D: Examination Of Pesvective Jurors Proiects Due Process Rignrs Bs Exposing Existence Of Grounds For Disqualification op. 436-435 Coxstititionac Law — Cximisat Law — Vorr Dire Examination — Marviand Rule 752 Affords Due Process In Examination Of Prospective Jurors pp. 436-408 Tatats — Voir Dire Examination — Counse! Has No Ansolute Rizht To Conduct Individual Vorr Dire Examination Of Prospective Jurors — Matter is Committed To Sound Discretion Of Trial Jucze — Triai Judge Did Nox Abuse Discretion In Conducting Voir Dire Examination in Accordance With Marviand Rule 752. Where trai court denied deterse counsel's request to individual!y question prospective jurors on voir dire. Dut here trial court asked ail voir dire questions submitted by defense counse:, the Court heid there was no error. constitutional or otherwise, with respect [0 the trial court's conduct of the voir dire examination Marviane Rule 752. p. 4538 Caismsat Law — Mcaner — Death Sentence — State Muse Nuuiv Deten- dant In Writing At Least 30 Days Prior To Triai That It Intends To Seex Death Sentence — No Additional Notice Is Required Before Sentencing Or Resentencing Proceeding — Code ‘1957. 1982 Repl. Voi. Art. 27.3 412 0" Where defendant in ‘irst degree murder case received requisite Aotice before trial. pursuant to Code: 1957. 1982 Rezi. Voi Art. 27.3 412:b». that State intended to seek 3 sentence of death. ihe Court aeld that no further statutory notice under § 412 ‘b+ was required prior to detendant’3 sentencing proceeding or pmor to resentencing proceedings foilowing appeais. p. 409 CoxstitetiosaL Law — Criminai Law — Dovsce Jeorarpy — Doctrine Of “Judicial Overreaching” Mav Bar Retrial — Doctrine Applies Where Court Engages In Misconduc: With Intent To Provoke Defendants Mvton For Mistrial — Deetrine Of “Judicial Overreaching™ Is Not Applicable To Instant Case. Where defendant's secon canital sentencing preceeding, in which death sentence was imposed. was reversed on acpeal Secause the trial judge erronesusiy required the transcript of defendant's orginal tnal to be introduced in evidence. the Court neid that this err 4.3 not c2ii into "E34 TA TATS ~ TICHNELL v. STATE 433 aq? -~ 432} Svilabus siay the doctrine of “udiciai overreaching” and did not bar. on doubdie jeoparay grounds. 2 third capital sentencing proceeding against the vefen- dant. PP. 459-441 Cammar Law — Murper — Death Sentence — Provisions Of Marviand’s Capital Sentencing Statute Reviewed — Cuce ‘1957. 1982 Repi Voi Ar -.) 20. 39 412-414: Marviaad Rule 772A. 2D. 441-446 Criminal Law — Capital Cases — Death Sentence — Constitutienai Requirements Of Death Penalty Statutes Reviewed — Constitutionacits Marviand Capitai Sentencing Statute Reailirmed — Code i957. i982 Reri Vol. Art. 27. s¥ 412-414 PP. 447-439 Crimina Law — Death Sentence — Review By Court Of Appeais — Statute Mandates Review Of Record By Court Of Appeais To Determine if Death Penaity Was: :1' Imposed Under Influence Of Arbitrary Factor: 2 Whether Evidence Supports Finding Of Statutory “Aggravating Circum- stance”: (3) Whether Ev:dence Supports finding That Aggravating C.rcus- stances Were Not Outwe:zned By Mitigating Circumstances: And 4 Whether Death Senterce Was Excessive Or Dispruperticr>te To mals Imposed In Similar Cases — Code: !957. 1982 Repl. Vol. Art 27.3 tise Camunat Law — Death Sentence — Review By Court Of Appeais — in Instant Case. Cour: Of Appeais Hoids That Death Sentence ‘Vis Not Imposed Under Influence Of Arbitrary Factor. And Tha: Evidence * supports Findings Of Two Statutory “Aggravating C:reumstances” Which vere Nor Outwetghed By Single “Mitiwat:ing Circumstance” — Coae !357 !8s2 Repi. Voi.) Art. 27. $ 414 +e In the instant case. based upon its review of the record before the jury in a capital sentencing proceeding. ine Court hela that the death sentence was not imposed upon the defendant ander ‘he imtluence of passion. prejudice or any other arbitrary factor in violation of Code 1957. 1962 Repi. Vol. Art 27.3 414:e:5:1) The Court further Ae:a that the evidence supported the jury's finding of two “aggravating c:rcum- stances”. i.e. that the victim was a law enforcemen: officer whu aas murdered while performing his duties. and that the detendant committed the murder to further an escape or an attempt io avoid Jawful custody or arrest by a law enforcement officer. Code, Art. 27.8 414 :e:2). The Coun further heid that these “aggravating circumstances” are not outweigned by the single mitigating circumstance that the defendant had not deen convicted previously of a crime of vioience. Code. Art. 27.38 413 e663). 410 igred. pp. 450-456 Criminal Law — Capital Cases — Death Sentence — Review Sv Court Of Appeals — Proportionality Review — Court Or Appeais Wil] Review Only Those Firs: Degree Murder Cases In Which State Sought Deatn Pen- fz $34 TICHNELL v. STATE ilty. Whether Or Noe Jt Was Imposed — Coce 2237, 19s20 Reo. Vou. art ? 3 3i4 e +s) Considering ihe pursose >of sreport:onaiity review to iuentifv and avoid “the aberrant sentence. the law of other jurisdictions with simiiar statutes. and the views ot iegai commentators. the Court heid that the procertionality review required Dv Coce 1957. 1982 Redi Vol Art 27.3 414 e''4) inciudes oniv those first dewree murder cases in which the State sought the death penalty under : 413. whether or rot 1 was imposed mp 457-465 Cosstiertionar Law — Caisnsan Law — Casctal Cases — Deaia Sen- tence — Review By Court Of Appeals — Prevort:ora.:s Review — Limiting Proportionaitty Review To On'y Those Cases In Which Deatn Pengityv Was Sought Does Net Violate Due Provess Clause Or Crue! And Unusual Pun- ishment” Provision Of US. Constitut:on Or Marviand Constitution — Code 1957. 1982 Repi. Voi. Art 27. : 4i4 e: +4) pp 465-466 Crimunat Law — Death Sentence — Review Bs, Cour: Of Appeals — Proportional:tv Review — Detendant Mav Request. Bui Not Require. Court Of Appeals To Consider Non-Capital Murder Cases Which Are Similar To Case Uncer Scrutiny — Code 1957. 1922 Reo! Vel Am 27 +: dl4ie 4 Although holding that neither federal or state consiiutions required the Court of Appeals to expand its “proportionality review under Code 1987. 1982 Repl Voi.) Art. 27.3 414 e+ 4) t0 nonapoesied cupitai causes where a life sentence was imposed. homicide case= «here a capital conviction was not obtained. or homicide cases wrere tne defencant was convicted of a lesser olTense. the Court stated that in its death sentence review proceeding. a defendant could recuest tne Court to consicer designated non capital murder cases Op. 465-406 Caiminat Law — Death Sentence — Review By Court Of Appeals — Proportionality Review — Court Will Review Similar Cases For Purvose Of Avoiding Artitrary Or Capricious Irnposition Or Death Penaity — Compar- ative Analvsis Limited To Cases Dee:ded Under Maryiand Law Ane Uncer Constitutional Death Peraliv Statutes — Code 1957. 1982 Reoi. Voi. Art. 27. 9 414 ier id: >. 466 Criminat Law — Death Senrence — Review Bv Court Of Azoeals — Fact That Murder Victim ‘Vas Pol.ce Otficer Pertorming His Regular Duties Mav Be Regarded As An “Aggrasating Factor” in Death Penalty Statutes — Death Sentence Affirmed In Instant Case. D. 367 Caiminat Law — Death Sentence — Review Sv Court Of Appeals — Provortiona!:tv Review — Court Of Appeals Seiects “Similiar” Cases Based. In Part. On Trial Judge's Report Filed Pursuan: To Marviand Rule 772. — Dissimilarities May Exist Between Instant Case And Cases Selected Far es TICHNELL v. STATE 405 432} Syllabus Comparative Review — Isolated Decision Of Jury To Aifora Merev Does Not Render Unconstitutional imposition Of Death Sentence Lpon Derendart. So Long As Death Sentence Statute Does Not Create Substantial Rusk OF Arbdiutrariness Or Caprice In Capitai Sentencing Process — Death Sentence In Instant Case Heid Nerther Excessive Nor Disproportionate Under Cece 1957, 1982 Repl Vol. art. 27.3 éléie: In conducting it “prt portionaiits review” under Article dT, § tlaier 4) the Court reviewed the Ruce rye trial judges reports :. ail 48 capital sentencing proceeding: orought since enactment of Mary land's death penalty siatute in [UTS Of these. tne Court selected five which it deemed to be “similar” under: 414 ¢''4 Based Uten a review of these five cases — OR-¥ one of which resulted a4 death sentence — the Court he/d that ine death sentence imonsed by a surs i the tnsian! cases was neither excessive nor disproportionate UNGer § sia ed) ant the sentence was affirmed po 466-473 J. A.A Review of Death Sentence ‘Maryland Rule $9>' trom the Circuit Court for Calvert County ‘Bowes. J. Richard Danny Tichnell was found gurity by ajury of first degree murder. in a case in which the State sought impos=!- tion of the death penalty under Code (1957. 1982 Repl. Vel Art. 27, $8 412-414. 4 death sentence. imposed by the trial court. was reversed by the Court and the case remanded for a new sentencing hearing. Tichneil v. State. 287 Md. 695. 415 A.2d $30 11980). On remand. a jury imposed a death sentence. but on appeal. the Court remanded for a thira capital sentencing hearing. Tichnell ¥. State. 290 Md. +3. 427 A.2d 991 11981). From a jury eentence again imposing the death penalty. Tichnell appeals. This appeal was initially argued on October 6, 1982. This issue relating to proportionality review of the death penalty was argued on January 6, 1983. Judgment affirmed. with costs. The cause was argued before Mureny. C. J.. and SMITH, Expaipce. Core. Davipsos. Rovowsky and Covcx, JJ. Clark B. Frame, with whom was Richard D. Poling on the brief, for appellant. Deborah K. Handel and Stephanie J. Lane. Assistant Attorneys General, with whom was Stepher H. Sachs. Attor- ney General, on the brief, for appellee. C1 ——_— 436 © TICHNEEL v-STATE- - - - 5 - 4@> Orinion of the Cour 297 Mad. Attorney General. for appellee. Mcurpuy. C. J., delivered the opinion of the Court, in which Evorivueé and Core. JJ.. concur and Davipson. J.. dissents Evorioce. J.. tiled a concurring opinion at page 477 infra: Core, J.. fled a concurring opinion at page 432 intra: Davipson. J.. filed a cissenting opinion at page 455 in‘ra. On Augus: 23. 1979, Richard Danny Tichnell was found guilty by a jury of the wilful. deliberate and premeditatea first degree murder of Deputy Sheriff David Livengood. The State sought imposition of the death penalty under Maryland's capital punishment statute. Marviand Code (1957, 1982 Repl. Vol... Article 27, $$ 412-414. inclusive. Tichnell wa:ved his statutory right to have the jurv deter- mine whether the death penalty should be imposed upon him: he elected instead to have the trial judge decide the issue. The court senter.ced him to death. On appeal, we alfirmed the murder conviction but vacated the death sen- tence on the ground that it had been imposed under the influence of an “arbitrary factor” in violation of Art. 27. $ 414 'e) 11). We remandec-for a new sentencing hearing. Tichnell v. State. 287 Md. 695. 415 A.2¢ 8301980: Tichnel! I). Thereafter. Tichnell elected to have a jury determine whether the death penalty should be imposed upon him. The jury conciuded that death was the 2ppropriate penalty. On appeal. we again vacated the death sentence and remanded for a new sentencing hearing; we concluded that the trial judge had committed reversidle error in admitting certain prior recorded trial testimony in evidence over Tichnell’s objection. Tichnell v. State, 290 Md. 43, 427 A.2d 991 ‘1981 (Tichnel] I). At his third capital sentencing hearing. Tichnell again elected to be sentenced by a jury. The jury imposed the death penalty and this appeal followed. I Tichnell contends that he was denied due process of law at his capital sentencing hearing because the court-conducted voir dire examination was too !imited to expose bias on th Cs TICHNELL v. STATE - 437 432] Opimion of the Court. part of the prospective jurors. He argues that the court errea in denying his motion to persenaily conduct the voir dire examination of the individual jurors. [m support of this argu- ment, Tichnell suggests that 1t was :mpossible “to prepare in advance appropriate voir dire examination cuestions. sub- ject to acceptance or rejection by the tria! court. unt:! counsel had an opportunity to observe and ascertain the decorsm and atmosphere :n the courtroom. tv hear the nature ana reach of the trial court's voir dire examination and inquiries. and to get a view of the prospective jurors and note their attitude and silence or responses to the initial voir dire examination.” Maryland Rule 752 provides: “The court may permit the parties to conduct an examination of prospective jurors or may itself con- duct the examination. If the court conducts the examination, it shall perm:t the parties tu supple- ment the examination by any further inquiry it deems proper or shal! itself sudmit to the prospective jurors the additional questicns proposed by the parties it deems proper.” Consistent with the provisions of the rule. the trial judge (Bowen, J.) announced at the outset of the proceedings that he would conduct the voir dire questioning of prospective jurors and wouid permit Tichneii to submit additional ques- tions to be propounded by the court to the jurors. The cour: thereafter asked a number of questions aimed at exposing juror bias or partiaiity. Tichne!] submitted additional voir dire questions to the court, al! of which the court asked the prospective jurors. The jury selection process must. of course. satisfy the essential demands of fairness guaranteed by the fourteenth amendment in order to afford the accused his due process right to an impartial jury. See Ristaino v. Ross, 424 U.S. 389, 595 n. 6, 96 S. Ct. 1017. 47 L. Ed. 2d 258 11976): Ham v. South Carolina, 409 U.S. 524. 93 S. Ct. 848. 35 L. Ed. 2d 46 (1973). The voir dire examination of prospective jurors pro- tects this right by exposing the existence of grounds for > ts Ovinion Jf the Court ‘297 Mad. disqualification. See Couser v. State, 252 Md. 125, 383 A.2d 389, cert. denied, 439 U.S. 85211978); Langley v. State. 281 Md. 337, 378 A.2d 1338 11977). Maryland Rule 752 permits, but does not require, individ- ual voir dire examination of prospective jurors by counsel. The matter is committed to the sound discretion of the trai judge; there is no absolute right vested in counsel. constitutional or otherwise, to conduct individual voir dire See. c.g.. Langley v. State, 231 Md. 337. 378 A.2d 1335 (1977); Brvant v. State. 207 Md. 565. 115 A.2d 502 '1955:: Handy v. State. 101 Md. 39. 60 A. 452 '1905): United States v. Duke. 409 F.2d 669 ‘4th Cir. 1969). cert. denied. 397 U S. 1062 (1970) idefendant has no constitutional! right to coun- sel-conducted voir dire): Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 ' 1980) (no constitutional right to individ- ual jury voir dire). See also Irvin v. State. 6i7 P.2d 588 ‘Okla. Crim. App. 1980). Tichnell has not identified any specific deficiencies or par- ticular shortcomings in the court's voir dire examination or the prospective jurors. Instead. he generalizes that the court's “attitude and disposition” during voir dire were antithetical to fair and impartial jury selection. He com- piains that the court’s questioning of prospective jurors was so brief. stiff and short as to have left him “on a stormy sea without compass or rudder.” Manifest!v. these allegations are insufficient to demonstrate that the jury selection pro- cess failed to assure Tichnell of a fair and impartial jury. We conclude, therefore. that no error appears on the record in this case with respect to the trial judge’s conduct of the voir dire examination in conformity with the dictates of Rule 752.' See also Poole v. State. 295 Md. 167, 453 A.2d 1218 (1983). 1. Tichneil has appended to his brief an aifidavit of his mother. wa:ch was executed three months after the death sentence had been impozed on her son. The affidavit states that two iurors approached his mother during the course of the sentencing proceeding. questioned her a3 to the identity of her companions. and said the information wouid be helpful .n making their decision. Tichne!! suggests that this alieged incident has some bearing on his argument that the voir dire was inetfective. although from the discus- sion in his brief, its significance is unclear. In any event, the affidavit was never presented to the trial court: therefore, it is not before this Court for consideration. See Sturgis v. State, 225 Md. 343, 346. 201 A.2d 681. 682 (1964); Maryland Rule 385. TICHNELL v. STATE 439 Tichnell contends that this third sentencing proceeding was null and void because the State failed to comply with the notice requirement of Art. 27. } 412 b). That section pro- vides, inter alia, that a person found guilty of first degree murder must be sentenced to life imprisonment unless “the State notified the person in writing at least 30 days prior to trial that it intencec to seek a sentence of death. and advised the person of each aggravating circumstance upon which it intended to rely....” Tichneil timely received the requisite statutory notice before his original trial. He was advised that the State intended to prove the existence of two aggravating circum- stances — that Livengood was a law enforcement ollicer Killed in the performance of his duties and that the murder was committed in furtherance of an escape or an attempt to escape from or evade lawful arrest by 2 law enforcement officer. Section 412 ‘b) does not require that the State give additional notice before commencing the capital sentencing proceeding. Plainly. the word “triai.” in the context of its usage in $ 412 ‘b), does not encompass a resentencing prc- ceeding ul Tichnell maintains that his third sentencing proceeding was barred by the Doubie Jeopardy Clause of the Fifth Amendment.” He contends that the trial court's conduct :n the second capital sentencing proceeding constituted “judi- cial overreaching,” which barred further resentencing because the trial judge “intentionally and deliberately directed and required the reading of prior recorded tria! tes- timony to the jury.” 2. The provision is made applicable to the states through the Due Process Clause of the Fourteenth Amencment. Benton v. Maryiand. 395 U.S. 7H. &9 S. Ce 2056, 23 L. Ed. 2d 707 119692) C.& 440 TICHNELL v. STATE Opinion of the Court. 297 Md. “Judicial overreaching” is significant for purposes of doubie jeopardy when a mistrial is deciared at the behest of the defendant. Generally, a defendant may be reprosecuted :f the initial trial resulted in a mistrial on his motion. Unite? States v. Jorn. 400 U.S. 470, 485, 91S. Ct. 547. 557. 27 L. Ed 2d 543, 556 (1971); Jourdan v. State, 275 Md. 495. 503~341 A.2d 388. 396 (1975), the rationale being that the defendant has elected to terminate the “right to have his trial com- nieted by a particular tribunal.” See Oregon v. Kennedy. 456 U.S. 667. 672-74, 102 S. Ct. 2083, 2087-88. 72 L. Ed. 2d 416. 422-23 (1982). Where the court engaged in misconduct with the intent to provoke the defendant's motion for a mistrial. retrial could be barred by the doubie jeopardy clause. Jd. at 679. 102 S. Ct. at 2091, 72 L. Ed. 2d at 427. As the Supreme Court recently explained: “In such a case, the defendant's valued right to com- plete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy....” Id. at 673, 102 S.Ct. at 2088, 72 L. Ed. 2d at 423. When a defendant’s trial is completed and his conviction later reversed on appeal, different rules pertain. With some exceptions. the defendant who successfully challenges his conviction may be retried, under the rationale that “the defendant wiped the slate clean and the parties may start anew.” Jones v. State, 288 Md. 618. 625. 420 4.2d 1241. 1244 (1980), cert. denied, 449 U.S. 1115 (1981). Tichnell’s second capital sentencing proceeding did not end in a mistrial; rather, the proceeding was completed. While the sentence imposed was later vacated in Tichaell. II, supra, 290 Md. 43. the trial court’s conduct did not amount to judicial overreaching. Rather, the trial judge was simply mistaken in his belief that it was essential that the tran- ..&3 TICHNELL v. STATE 441 ’ ~ . Ue} Op:nion of the Court script of testimony in Tichnell’s omginai trial be introduced in evidence so as to permit the sentencing jury to have before it the identical testimony that was produced before the factfinder at the guilt or innocence stage of the proceeding. Manifestly, the court's action was not intended to provoke Tichnel! to move for a mistrial. We conclude that nothing in the bar of double jeopardy prevented a third capital sentencing proceeding in Tichnell’s case. See Tichnell. I. supra, 290 Md. at 64 IV Tichnel’ next contends that the resentencing record in this case does not support the imposition of the death penalty. He argues that the evidence adduced at the resentencing hearing differs in materia! respects from that produced at his original trial: that it sustains his version of the killing of Deputy Livengood: and that the death sentence imposed upon him must therefore be vacated. Tichnell also maintains that the death sentence imposed upon him constitutes cruel and unusual runishment in violation of the Eighth and Fourteenth Amendments to the Federal Constitution and Article 25 of the Maryland Declaration of Rigi.:s. This ts particularly so, he claims. because he has been made to suffer through three capital sentencing hearings. each ot which resulted in the imposition of a death sentence. Proper consideration of Tichnell’s arguments necessitates that we review the pertinent provisions of the Maryland capital sentencing statute, the governing law, and the evidence underlying Tichnell’s conviction and sentence. tA) Section 412 ‘b) of the Marvland statute provides that a person found guilty of murder in the first degree must be sentenced to life imprisonment unless the State (1) notifies the accused in writing at least 30 days prior to trial that it intends to seek the death penalty, (2) advises the accused of each “aggravating circumstance” upon which it intends to rely and (3) obtains the death penaity in accordance with the provisions of § 413 of the statute. Where the State complies with these prerequisites, and the accused is found guilty of murder in the first degree, $ 413 ‘a) requires that a separate C.10 442 TICHNELL v. STATE Opinion of the Court (297 Md. sentencing hearing be held. either before a jury or before th court, if the defendant waives his right to a jury hearing. Section 413 ‘c) provides that the foliowing type of evidence is admissible at the sentencing hearing: ti) Evidence relating to any mitigating circum- stance listed in subsection ‘g:: iil) Evidence relating to any aggravating circum- stance listed in subsection id) of which the State had notified the defendant pursuant to § 412 ‘bi: ‘iii) Evidence of any prior criminal 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. How- ever, any recommendation as to sentence contained in the report is not admissible: and iv) Any other evidence that the court deems of probative value and relevant to sentence. provided the defendant is accorded a fair opportunity to rebut any statements.” Under $3 413 ‘d) of the statute, the sentencing authority. either judge or jury, is first enjoined to consider whether, beyond a reasonable doubt. any of ten statutorily delineated aggravating circumstances exist.’ If the sentencing author- 3. The aggravating circumstances are: 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 correctional institution or by a law enforcement officer. (4) The victim was a hostage taken or attempted to be taken in the course of a kidnapping or abduction or an attempt to k:dnap or abduct. (5) 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 remu- neration to commit the murder. C.14 j | | ' TICHNELL v. STATE 443 432] Osinion of the Court ity does not find. bevond a reasonable douodt. the existence of one or more of the aggravating circumstances, the sentence must be life imprisonment. } 413 (ff. [f. however. the sentencing authority finds beyond a reasonable doubt the existence of one or more aggravating factors, then it must determine whether, by a preponderance of the evidence, any of eight “mitigating circumstances” exist. : 413 :g)* Th (7) The defendant engaged or empioved another person to commut the murder and tne murder was comra:tted pursuant lo an agreement or contract for remuneration or the promise of remu- neration (3) At the time of the murder. the defendant was under sentence of death or imprisonment for !ife 9) The defendant committed more than one offense of murcer in the first degree arising out of the same incident (10: The defendant committed the murder while committing or attempting to commit robbery. arson. or rape or sexual otfense in the first degree ~ 4. The mitigating circumstances are: “\L) The defendant has not previousiv 1) been found guilty of a erme of violence: ‘11! entered a piea of guiity or nolo contendere tu a charge of a crime of violence; or ‘1i1) had a judgment of prooation on stay of entry of judgment entered on a charge of a crime 0! violence. As used in this paragraph. crime of violence meuns abduction, arson. escape. kidnapping. mansiaughter. except inyol- untarv manslaughter. mayhem. murder. rooberv. or rape or sexuai offense in the first or second degree. ur an attempt tu commit ans of these offenses. or the use of a handgun in the commission of 4 felony or another crime of violence. (2) The victim was a participant in the defendant's conduct or consented to the act which caused the victims death. (3) The defendant acted under substantial curess. domination or provocation of another person. put not so suostantial as to consti- tute a complete defense to the prosecution. (4) The murder was committed while the capacity of the deten- dant to appreciate the criminaiity of his conduct or to confurm his conduct to the requirements of law was substantially impaired as a result of mentai 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) Itis unlikely that the defendant wi!] engage in further crim- inal activity that would const:tute a continuing threat to Soviets (8) Any other facts which the jury or the court specifically sets forth in writing that it finds as mitigating circumstances .n the case. 0.12 444 TICHNELL v. STATE Opinion of the Court. (297 Md. statute requires that a sentence of life imprisonment be imposed if, by a preponderance of the evidence. the sentencing authority finds that the mitigating circum- stances outweigh the aggravating circumstances. § 413 ‘nh: ‘L) and (3). If the sentencing authority concludes that the mitigating circumstances do not outweigh the aggravating circumstances by a preponderance of the evidence. a sen- tence of death must be imposed. § 413 +h) :2).° At the conclusion of the evidence at thé sentencing hearing, the trial judge is required bv ¥ 413'c¢!\3) to instruct the jury “as to the findings it must make in order to deter- mine whether the sentence shail be death or imprisonment for life and the burden of proof applicable to these findings” in accordance with the governing provisions of § 413. Section 413 (i) requires that the determination of the sentencing authority must be in writing and. if a jury. de unanimous and signed by the foreman Section 413 |j: requires the sentencing authority to specify: "t1) Which, if any. aggravating circumstances it finds to exist: (2) Which, if any. mitigating circumstances it finds to exist: : (3) Whether any mitigating circumstances found under subsection (g) outweigh the aggravating cir- cumstances found under subsection id); (4) Whether the aggravating circumstances found under subsection \d) are not outweighed by mitigating circumstances under subsection ‘g’: and 5. Section 413 ‘e:' 1) of the statute makes clear that only a princ:pai in the first degree is subject to the death penaity. except where the aggravating circumstance charged is that outlined in § 412.4) °7). A prin- cipal in the first degree “is one who actuaily commits a crime. either by his own hand. or by an inanimate agency or by an innocent human agent.” State v. Ward. 284 Md. 189. 197, 296 A.2d 1041 .1978). @.13 TICHNELL v. STATE 445 $32] Opimon of the Court (5) The sentence, determined in accordance with subsection 'f) or ‘h).” Section 413 ‘k) requires that the court impose the sentence determined by the jury under $ 413 ‘f) or th: it further specifies that the court dismiss the jury and impose a sen- tence of life imprisonment if the jury. within a reasonable time. is unable to agree as to the sentence to be imposed. Section 412 (1) authorizes this Court to adopt rules of proce- dure to govern the conduct of the capital sentencing pro- ceeding, including any forms to be used by the sentencing authority in making its written findings and determination of sentence. Section 414 entitled “Automatic review of death sen- tences” requires in subsection ‘e' that this Court review the imposition of the death penalty on the record befure the sentencing authority in order to determine: "\1) Whether the sentence of death was imposed under the influence of passion. prejudice. or any other arbitrary factor: (2) Whether the evidence supports the jury's or court's finding of a statutory aggravating circum- stance under § 413 (d); (3) Whether the evidence supports the jury's or court's finding that the aggravating circumstances are not outweighed by mitigating circumstances: and (4) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defen- dant.” With respect to the “similar cases” proportionality review provision of § 414 (e) (4), $ 414 (f) (2) requires that this Court “include in its decision a reference to the similar cases which it considered.” Section 414 (f) mandates that this Court either (1) affirm the death sentence, (2) set it aside and remand for a new ©,141 TICHNELL v. STATE Opinion of the Court 297 Md. “tsiet aside tne sentence and sentencing proceeding, oF 13) to imprisonment remand (ur a modification of the sentence for life.” Maryland Rule *79A4, adopted by this Court pursuant to § 413 ‘1) of the statute. prescribes a verdict form for use dy the sentencing authority in making its findings and deter- mination. The form tracks the pertinent statutory janguaze of § 413 and directs the sentencing authority to specity. Dy “yes” or “no” answer. whether the azgravating andor mitigating circumstances were established by the evidence.” The verdict form guides the seniencing authority in its final determination of sentence within the formulation of 3 413 of the statute. The rule requires that the verdict form be signed by each juror It requires in subparagraph f that the tral judge complete a report, the detailed content of which the rule prescribes The report calls for pertinent information pertaining to the accused and the crime. and requires the trial judge to describe the “facts of offense” and state his opinion as to whether the death sentence was justified.’ The rule requires that the trial judge send his report to counsel for the parties for comment as to its factuai accuracy. Coun- sels comments are required to be attached to the trial judge’s report. the report must be promptly filed “with the clerk of the trial court. and in the case of a life sentence with the Clerk of the Court of Appeals.” ° — 6. The verdict form provides space permitting the sentencing authorty to state. in wrung. any other mitigating circumstances which it may fin in a to the specifically listed mitigating circumstances outlined in 2 413. 'g). 7. Section 414 'b) of the statute requires that the clerk of the trial court. in transmitting the record of the capital sentencing i i of the trial ;udge. which is to contain “a recommenda y — t as to whether or not impusition of the sectence of death is justified in case. &, The “Committee note” appended to Rule 772A states that “tiln the case of a life sentence the report of the judge 18 filed with the Clerk of the Court of Appeals only for informational purposes to it that Court to maxe the determination in other cases required by Code. Articie 27. ¢ 4140 Tr i.e., the proportionality review provision of the statute. TICHNELL v STATE $47 432] Opinion of the Court ‘Bi In Tichnell I. supra. 287 Md. at 729. we held that Maryland’s capital sentencing statute. enacted in 1978. ‘on its face. ... satisfies the requirements of the Eighth and Fourteenth Amendments to the federa! constitution. and Art. 25 of the Maryland Declaration of Rights ~ We so concluded after reviewing a number of Supreme Court cases concerning the constitutionality of death penalty statutes. beginning with Furman v Georgia. 408 U.S. 238. 925. Ct. 726, 33 L. Ed. 2d 346 '1972). and including Gregg + Georgia. 428 U.S. 153. 96 S. Ct. 2909. 49 L. Ed. 2d 359 (1976): Proffier v. Florida. 428 U.S. 242. 96S. Ct. 2960. 49 L. Ed. 24 913 (1976): and Jurek v. Texas. 428 U.S. 262. 96 S. Ct. 2950. 49 L. Ed. 2d 929 11976). We noted the holding tn Furman, namely, that death sentences administered under statutes which vested trial courts of general jurisdiction with the discretion to sentence a person convicted of first degree murder to either life or death violated the Eighth and Fourteenth Amendments to the Federal Constitution. We further noted that some states. including Maryland. initially misread the holding in Furman to require that a death pen- alty statute, to be constitutional. had to automatically require imposition of the death penalty upon conviction of a specifically defined and narrowly drawn class of tirst Gegree murder. We also noted that in Woodson v. North Caroiina. 428 U.S. 280. 96 S. Ct. 2978. 49 L. Ed. 2a 944 1976'. the Supreme Court held that mandatory death penaity statutes were unconstitutionai for failure to require the sentencing authority to consider the character and record of the individ- ual offender and the circumstances of the particular offense. Woodson declared that mandatory death penalty statutes impermissibly vested standardless sentencing discretion in juries. 428 U.S. at 302-03. We observed in Tichne!l! [ that in Gregg. Proffitt and Jurek, the Supreme Court uphe!d the death penalty stat- utes, respectively, of Georgia, Florida and Texas. all of which involved the constitutionality of so-called “guided discretion” death penalty statutes. In Gregg, the Court's C.46 448 TICHNELL v. STATE Opinion of the Court {297 Md. plurality opinion upheld the const:tutionality of such stat- utes against Eighth and Fourteenth Amendment attack. The Court there construed Furman as holding that the death penalty could not be imposed under sentencing procedures that created a substantial msk that the penalty would be inflicted in an arbitrary and capricious manner: it said: “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 23 to minimize the risk of wholly arbitrary and capricious action.” 428 US. at 188. We further noted in Tichnel! I. supra. 287 Md. at 723. that the death penalty statutes upheld in Gregg, Proffitr and 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, 428 U.S. at 274, that this type of provision “guides and focuses the {sentencing authority's} objective consideration of the particularized cir- cumstances of the individual offense and the indi- vidual offender before it can impose a sentence of death.” Finally, the statutes that were upheld provided for expedited appellate review of the death penalty statute as a check against the random or arbitrary imposition of the death pen- alty. The Maryland statute complies with the three genera! methods of guiding the discretion vested in the sentencing authority, as required by the Supreme Court cases. We said in Tichnell I, supra, 287 Md. at 728-29: @.17 TICHNELL v. STATE 449 432) Opinion of the Court. “The [Maryland] statute provides a bifurcated trial procedure, and the imposition of the death penalty is limited to cases in which the sentencing author- ity finds at least one aggravating circumstance. The sentencing authority is required to consider the existence of mitigating circumstances. A sentence of death may be imposed only if the mitigating cir- cumstances do not outweigh the aggravating cir- cumstances. Although the sentencing authority still has discretion under the statute, it is guided by clear and objective standards. See Gregg v. Georgia. supra, 428 U.S. at 197-98. “Moreover, the statutory scheme incorporates the third major safeguard against arbitrariness. i.e.. the expedited automatic appeal of all death F ® g 4 tw te) ~1 ‘ 2.53 —_ ss" TICHNELL v. STATE +35 432] Dissenting Opinion. Davidson. J., dissenting: The majority here determines tiiat under Maryland Code (1957, 1982 Repl. Vol.), Art. 27, $ 414 ‘e) 14) “the legisia- tively intended inventory of cases from which ‘similar cases’ are to be culled encompasses only those first degree murder cases in which the State sought the death penalty under § 413, whether it was imposed or not.” Moreover. the major- ity here concludes “that the death sentence imposed upon Tichnell was neither excessive nor disproportionate to the penalty imposed in similar cases in Maryland. considering both the crime and the defendant.” Consequently. the major- ity affirms the death sentence imposed. | do not agree. Accordingly, I respectfully dissent I The United States Supreme Court requires that “capita! punishment be imposed fairly. and with reasonable consistency, or not at all.” Eddings v. Oklahoma. 455 US. 104, 112, 102 S.Ct. 869, 875 1982). Indeed. the purpose of the Supreme Court's standards for imposition of the death penalty is to “serve both goals of measured. consistent appli- cation and fairness to the accused.” Eddings. 455 U.S. at 111. 10Z S.Ct. at 874-75. Moreover, that Court has expressly recognized that the function of appellate review is to achieve these goals. In Jurek v. Texas. 423 U.S. 275. 276. 96 S.Ct. 2950, 2958 (1976), the Supreme Court stated: “By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction. Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under |aw.” ‘Emphasis added.) More particularly, the Supreme Court has expressly recognized that proportionality review is designed to effectu- ate the consistent and fair application of the death penalty. Thus, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909 (1976), the Supreme Court acknowledged that the primary function of a state reviewing court in performing propor- G.54 | 486 TICHNELL v. STATE Dissenting Opinion. i {297 Md. imposed unless it has generally been imposed in similar | | tionality review is to assure that the death penalty is not | cases throughout the state. There the Supreme Court said: "In performing its sentence-review function, the Georgia court has held that ‘if the death penalty is only rarely imposed for an act or it is substantially out of line with sentences imposed for other acts it will be set aside as excessive. Coley v. State, 231 Ga., at 834, 204 S.E.2d. at 616. The court on another occasion stated that ‘we view it to be our duty under the similarity standard to assure that no death sen- tence is affirmed uniess in similar cases throughout the state the death penalty has been imposed generally... .’ Moore v. Staze. 233 Ga. 861. 864. 213 S.E.2d 829. 832 (1975). See also Jarrel/ v. State. supra, at 425. 216 S.E.2d. at 270 ‘standard is whether juries generally throughout the state have imposed the death penalty’); Smith v. State, 236 Ga. 12, 24. 222 S.E.2d 308. 318 (1976) ‘found ‘a clear pattern’ of jury behavior).” Gregg, 428 U.S. at 204-05, 96 S.Ct. at 2940 ‘emphasis added). In holding the Georgia capital-sentencing system constitu- tional! on its face, the Supreme Court concluded: "The provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review 2 | procedures assure that no defendant convicted under such circumstances will suffer a sentence of . death.” Gregg, 428 U.S. at 206, 96 S.Ct. at 2940 (emphasis added). 2.55 TICHNELL v. STATE 487 432] Dissenting Opinion. Article 27, § 414 ‘e). enacted in the wake of Gregg. is patterned after the Proportionality review provision of the Georgia death penaity statute. See Ga. Code Ann. ¥ 17-10-35 (¢) (1982).' Section 414 ‘e) provides in pertinent part: “In addition to the consideration of any errors properly before the Court on appeal. the Court of Appeals shail consider the imposition of the death sentence. With regard to the sentence. the Court ~~shal!l determine: ‘ “(4) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defen- dant.” (Emphasis added.) Manifestly. the purpose of that provision is to provide consistency and fairness in the imposition of the death pen- alty by assuring that the death penalty is not imposed unless it has been generally imposed in similar cases throughout the State. This case involves a question of statutory construction. At issue is the meaning of the term “similar cases” appearing in $ 414 te) (4). The cardinal rule of statutory construction is to ascertain the actual intent of the Legislature. The pri- mary source from which to determine the intention of the Legislature is the language of the statute. If the statutory is ambiguous, the statute is to be construed reason- ably and with reference to the purpose to be accomplished. Scott v. State, 297 Md. 235, 245-46, 465 A.2d 1126, 1132 1. § 17-10-35 ‘e) provides in pertinent part: { “With regard to the sentence, the court shall determine: “488 TICHNELL v. STATE Dissenting Opinion. (297 Md. (1983); State v. Lascomb, 291 Md. 424. 429, 435 A.2d 764. 767 (1981); Department of State Planning v. Mayor of Hagerstown, 288 Md. 9, 14, 415 A.2d 296, 299/ 1980). Finaily, a penal statute must be strictly construed in favor of the accused. State v. Canova, 278 Md. 483, 496-97, 365 A.2d 988, 996 (1976): Gatewood v. State, 244 Md. 609, 617, 224 A.2d 677, 682 (1966); Weinecke v. State. 188 Md. 172, 176,52 A.2d 73, 74 (1947). I shall apply these genera! rules of statutory construction here. In enacting § 414 ‘e) (4), the General Assembly considered the scope of the inventory of cases necessary to assure effec- tive proportionality review. Thus, in a letter dated 14 December 1977 from the Governor's Chief Legislative Offi- cer to the General Assembly, it was said with respect to § 414 (e): “In addition to any other considerations properly before the Court. subsection (E) requires the Court to make four determinations regarding the death sentence. Those considerations require the court to view the evidence in light of each of the court's or jury's separate written decisions. Also required is a comparison of the penalty imposed in cases which are similar to the murder committed in the instant case and to the defendant who committed the crime. Unlike the Georgia statute. the Court is not limited to cases which occurred after a certain date. The Court is free to consider any similar cases. and it must refer to them in its decision.” (Emphasis added.) This legislative history? establishes that the General Assembly intended that the broadest possible inventory of similar cases be utilized in Maryland's proportionality review procedure.* ee a TICHNELL v. STATE 489 432] Dissenting Opinion. Notwithstanding the General Assembly's intent that “any” similar cases be considered. the majority chooses to restrict the inventory of similar cases to “only those first degree murder cases in which the State sought the death penalty under § 413, whether it was imposed or not.” ana to exclude those “other death-eligible murder cases in which the prosecutor could have. but did not seek the death pen- alty.” The majority. however. offers no affirmative justitfica- tion for this exclusion. In my view, “death-eligible murder cases in which the prosecutor could have, but did not seek the death penalty” are “similar cases” within the scope of § 414 ‘e) (4). In that section, the General Assembly expressly outlined the char- acteristics to be taken into account in proportionality review. There it stated that in determining whether the death penalty is disproportionate “both the crime and the defendant” should be considered. With respect to the crime committed in this case. the d:s- tinguishing characteristics * are that Tichnell killed a poiice officer in an attempt to evade arrest. Moreover. with respect to the defendant in this case, the distinguishing char- acteristic is that Tichnell had not previously been found guilty of a crime of violence. Consequently, in determining what constitutes a case similar to this case. these distin- guishing characteristics must be taken into account. Such distinguishing characteristics undoubtedly are present. not only in cases “in which the State sought the death penalty ... whether it was imposed or not,” but also in those “other death-eligible murder cases in which the prosecutor couid have, but did not seek the death penalty.” Under these cir- cumstances, such cases should be included in the inventory. the review Hubbard, Burry. and Widener. A fanny me onl Basis for the Death Penalty: The Practice. Constiutionalicy. and come « 5s tal Throughout this . ot ae a raraung tn mceting rcamatancys oun yh $ 413 id) & ig). 2.58 Pennant > = 490 TICHNELL v. STATE Dissenting Opinion. 297 Md. In mv view, “death-eligible murder cases in which the prosecutor could have. but did not seek the death penalty” must be inciuded in the inventory of relevant cases in order to achieve the goal of proportionality review — the consis- tent and fair application of the death penalty. Recently, in Enmund v. Florida. US. . ,102 S.Ct. 3368, 3379 (1982). the Supreme Court held that death was a disproportionate penalty for a felony murder in which the defendant, the driver of a get-away car. did not himself kill. attempt to kill. or intend that a killing take place. In reaching this result, the plurality > relied upon legislative judgments and sentencing decisions of juries. both of which were regarded as significant and reliable objective indices of contemporary standards of decency. Enmund. US. at . 102 S.Ct. at 3372-75. In response to the dissent.” the plurality said: “The dissent criticizes these statistics on the ground that they do not reveal the percentage of homicides that were charged as felony murders or the percentage of cases where the State sought the death penalty for an accomplice guilty of felony murder. We doubt whether it is possible to gather such information. and at any rate. if would be relevant if prosecutors rarely sought the death pen- alty for accomplice felony murder. for it would tend to indicate that prosecutors. who represent society's interest in punishing crime. consider the death pen- alty excessive for accomplice felony murder.” Enmund. US.at .102S.Ct. at 3376‘ empha- sis added) (citation omitted). In conclusion. the plurality said: “Although the judgments of legislatures, juries and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth The prevailing opinion was authored by Justice White and joined by oaeul Marshall. Blackrvan. and Stevens. Justice Brennan flied con- €@ Justice O'Connor filed a dissenting which Chief J ice a mon in ust Burger and Justices Powell end Rehaguas jomed = @.59 TICHNELL v. STATE 491 432) Dissenting Opinion. Amendment permits imposition of the death pen- alty....” Enmund, U.S.at ,102S.Ct. at 3376 ‘emphasis added). Thus, all nine Justices of the Supreme Court agreed that because the judgment of prosecutors constitutes an objective index of contemporary standards of decency. the fact that in certain circumstances prosecutors rarely seek the death pen- alty is relevant and should be considered in determining whether the death penalty is excessive or disproportionate. Subsequent to Enmund. the Supreme Court of Georgia. in Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982). interpreted the scope of the term “similar cases” appearing in the Georgia statute. The Court. citing Enmund. expressly noted: “We do compare cases as to which the death penaity could have been sought by the prosecutor but was not.” Horton, 249 Ga. at §80 n.9, 295 S.E.2d at 289 n.9. Consequently, the Supreme Court of Georgia determined. in essence, that “death-eligible murder cases in which the pros- ecutor could have, but did not seek the death penalty” are included in the inventory of cases utilized for proportionality Maryland’s death penalty statute is patterned upon the Georgia statute. Thus, the Supreme Court of Georgia's inter- 5 g 4 f fH EE i ye | | Lal al at aretl He 492 TICHNELL v. STATE Dissenting Opinion. {297 Md. in Maryland “death-eligible murder cases in which the pros- ecutor could have, but did not seek the death penalty” must be included in the relevant inventory of cases utilized for proportionality review. For the first time, this Court has before it data concerning the exercise of prosecutorial discretion in death penalty cases.’ This data dramatically demonstrates that the inven- tory of relevant cases for proportionality review must include ail death-eligible murder cases — not only those in which the prosecutor sought the death penalty, but aiso those in which he did not. This data reveals that in Maryland prosecutors seek the death penalty in only 7.8% of the death-eligible cases, whereas in 92.2% of the death-eligible cases the death pen- alty is not sought.'° Consequently, this data establishes that Maryland prosecutors rarely seek the death penalty, a fact that is relevant, in and of itself, in determining whether the death penalty is disproportionate. More important. the purpose of proportionality review is to assure that a person is not sentenced to death unless the death penalty has been imposed generally in similar cases throughout the State. Gregg, 428 U.S. at 205. 96 S.Ct. at 2940. If this purpose is to be effectuated, under § 414 ‘e) :4). a person sentenced to death must have his background and the nature and the circumstances of the crime committed 9. An jlate court may take ‘udicial notice of the record in other cases before it v. State. 291 Md. 198. 203, 434 A.2d 552. 5551981): Jeweler Consnqeonaiy . Ttak Ler hE = » At yt y 4 + * in Ca v te, (No. IRR ep presently pending before See Appendix |. No. 129, Sept. Term. 1941 and No. 5, Sept. Term. 1982. Calhoun + vy. State. Appendix to tal Brief of Appellants. Voi L at 1. Statustical Summary of in Calhoun v State Relating wo Prosseatonai Discretion in Death Penalty Cases. Percentage of Qualifying Cases in which C aginal Heid douth-clantlec lncheding net oaee’ 222; et cases oniy inw prosecutor sougnt the death penalty, but in whith he did not. C61 TICHNELL v. STATE 4923 432] Dissenting Opinion. compared to the sentence imposed on other persons in this State of similiar background who committed a similar crime under similar circumstances. That prosecutors do not seex the death penalty in 92.2% of death-eligible murder cases shows that unless all death-eiigible cases are included in the inventory, a significant number of cases involving similar defendants and similar crimes would be excluded from pro- portionality review. In addition. the data concerning the exercise of prosecu- torial discretion reveals that in cases in which the death penalty has been sought juries in Garrett County have imposed the death penalty in 50% of the cases, whereas juries in Baltimore City have imposed the death penalty in 33%.'' This data suggests that in these :wo jurisdictions the death penaity has been imposed in a somewhat consistent manner. The data further reveals, however. that in Maryland there is a substantia! variation in the exercise of prosecutorial discretion. In Garrett County prosecutors seek the death penalty in 100% of the death-eligible cases. whereas in Baltimore City, they seek that penalty in only 1.8%.'? This data further shows that when prosecutorial discretion is taken into account, juries in Garrett County have imposed the death penalty in 50% of all the death-eligible cases, whereas juries in Baltimore City have imposed the death penalty in only .6%.'* Consequently. this data demonstrates that in these two jurisdictions the death penalty has been imposed in an inconsistent manner. If death-eligible cases in which the death penalty has not been sought are excluded from the inventory. a person who has committed a crime in Garrett County is deprived of a realistic comparison of the treatment accorded to other 11. See Appendix |, Capital Proceedings Held. Death Imposed. 12 See L, Percentage ef Qualifying Cases in which Capital 13. See Appendix |. Percentage of Qualifying Cases in which Death was 2. 62 $94 TICHNELL v. STATE Dissenting Opinion. {297 Md. persons of similar background who committed a similar crime under similar circumstances in Baltimore City and. indeed. throughout the State. In my view, if all death-eligible cases are not included in the inventory. !t is impossible conscientiously to determine whether the death penalty has been imposed generally in similar cases throughout the State. In essence, the major- ity $ restriction of the inventorv of cases to those in which the crosecutor has sought the death penalty makes it impos- sibie, in a given case. to determine that the imposition of the death penaity is fair and consistent. Such a result is not consonant with the General Assembly's intent that the broadest possible inventory of similar cases be utilized in Maryland's proportionality review procedure. More impor- tant, such an interpretation ts not consonant with the General Assembly's purpose of assuring consistent and fair application of the death penaity through proportionality review. Moreover. the data concerning the exercise of prosecu- torial discretion raises substantia! constitutional! questions concerning the majority’s exciusion from proportionality review of death-eligible cases in which the prosecutor has not sought the death penalty. The majority, relying upon footnotes in Gregg. 425 U.S. at 204-05 n.56, 96 S.Ct. at 2940 n.56, and Proffitt v. Florida 428 U.S. 242, 259 n.16, 96 S.Ct. 2960, 2970 n.16 (1976), has determined that: “Implicit in [Gregg and Proffitt] is the conclusion that to include in the relevant inventory of cases only those in which the death penalty was sought does not violate the due process or cruel and unusual punishment provisions of the federal con- stitution.” Thus, the majority itself recognizes that in Gregg and Proffitt the Supreme Court did not explicitly hold that it is . 63 TICHNELi v. STATE 30: wv 432] Dissenting Opinion constitutional! to restrict the inventory of cases to those in which the death penalty was sought. In Gregg and Proffitt the Supreme Court considered oniy the facial constitutionality of the Georgia and Florida death penalty statutes. These cases were decided bv a piurality of the Coust.'* In a concurring opinion in Gregg. Justice White articulated the view that prosecutorial discretion need not be taken into account in proportionality review. There Jus- tice White said: "Petitioner also argues that decisions made by the prosecutor — either in negotiating a plea to some lesser offense than capital murder or in - simply declining to charge capital murder — are standardless and will inexorably result in the wanton and freakish imposition of the penaity condemned by the judgment in Furman. | acdress this point separately because the cases in which no capital offense is charged escape the view of the Georgia Supreme Court and are not considered dy it in determining whether a particular sentence is excessive or disproportionate. “Petitioner's argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary. it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likeli- 14. The preva:ling and Proffitt were i by Sepia Semen. Fe i go it: Justice fdustices in a separate opinion, bey ay ny concurred in the jucgments of the Brennan and each " a 496 TICHNELL v. STATE Dissenting Ovinuon. (29% hood that a jury would impose the death penalt~ if it convicts. Unless prosecutors are incompetent in their judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penaity through prosecutorial charging decisions only because the offense is not sufficientiv serious: or because the proof is insuffi- ciently strong. This does not cause the system to be standardiess any more than the jury's decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonabie doubt. Thus the prosecutors charging decisions are unlikely to have removed from the sample of cases considered by the Georgia Supreme Court any which are truly ‘similar.’ If the cases realiv were ‘similar’ in relevant respects, it is unlikely that prosecutors would fail to prosecute them as capital cases: and I am unwilling to assume the contrary.” Gregg. 428 U.S. at 224-25. 96 S.Ct. at 2949 (White J.. concurring’ ‘emphasis added). 7 odd. Manifestiy, Justice White's view is premised upon the assumption. unsupported by facts, that there is no signifi- cant variation in the exercise of prosecutorial discretion and consequently that prosecutorial discretion has no impact upon proportionality review. The data before this Court for the first time provides facts concerning the exercise of pros- ecutorial discretion. This data demonstrates a substantial variation, ranging from 1.8% to 100%, in the percentage of cases in which the death penalty is sought, depending upon the identity of the prosecutor making the determination.'* Equally important, this data shows that there is a substan- 18 See Agpondia 1. Percontage of Qualifying Casco in which Capital 2. 65 TICHNELL v. STATE 497 432] Dissenting Opinion tial variation in the standards emploved by prosecutors in deciding in which cases to seek the death penaity.'® In six counties. the prosecutors exercise virtualiy no discretion: these prosecutors seek the death penalty whenever a single aggravating circumstance is present and mitigating circum- stances are not taken into account. In six other counties and Baltimore City. prosecutors exercise considerable discretion. Such prosecutors weigh the aggravating circumstances against the mitigating circumstances in determining whether to seek the death penalty. There are many other variations in the standards employed by prosecutors. In some jurisdictions the strength of the case is evaluated. Sometimes the question whether a jury would impose the death penalty is considered. In Baltimore City the death penalty is sought if there is a substantial likelihood that the jury would impose death. In Montgomery County. the death penalty is sought if there is a reasonable possibility. In Charies County, the death penalty is sought un!ess it is very unlikely that the jury will impose that penalty. In two counties, the prosecutors take public sentiment with respect to the case into account, whereas in seven others. they do not. In five counties. prosecutors take the relationship be- tween the accused and the victim into account. whereas in three others they do not. In one county. the prosecutor con- siders the burden of prosecuting a death penalty case upon the State’s Attorney's office and the courts, whereas in seven other counties, they do not. A prosecutor in one county seeks the death penalty as a device to obtain a plea bargain. whereas the prosecutors in no other county engage in such a practice. In a single county, the prosecutor seeks the death penalty in felony murder cases only when the aggravating circumstances are separate and distinct from the underlying felony, whereas no prosecutor in any other county has such a policy. Finally, the data before this Court shows that when six prosecutors were asked the hypothetical question whether they would seek the death penalty in a case involving a fourteen-year-old charged with felony murder, 16. See No. 129. Sept, Term. 2998 ond No. 6. Sept. Term. 1982 Calhoun Joint Record Extract. Voi. [V. v. State. _2. 66 498 TICHNELL v. STATE Dissenting Opinion. (297 Md. three responded chat they would and three responded that they would not. Manifestly, Justice White's assumption that the stan- dards employed by prosecutors in Georgia wil! be consistent and that “if the cases really were ‘similar in relevant respects. it is unlikeiv that prosecutors would fuil to prose- cute them as capital cases” may not be well-founded. See Gregg. 428 U.S. at 225. 96 S.Ct. at 2949 White. J.. con- curring’. Under these circumstances. the impact upon the Supreme Court of data similar to that before this Court cannot be assessed. It is. nonetheless. apparent that the exis- tence of such data raises the question whether the reievant inventory of cases must include those in which the death penalty was not sought in order for proportionality review to be constitutional. Subsequent to Gregg, in Enmund. al] nine Justices of the Supreme Court agreed that the fact that prosecutors rarely seek the death penalty is relevant and should be considered in determining whether the death penalty is excessive or disproportionate. Enmund aid not invoive the question of the scope of the relevant inventory of cases necessary for constitutional proportionality review. Nonetheless, it sug- gests that the existence of data similar to that before this Court, indicating that prosecutors rarely seek the death pen- alty. and that there is significant variation in the standards employed and the percentage of cases in which the death penalty is sought. raises the question whether the relevant inventory of cases must include those in which the death penalty was not sought in order for proportionality review to be constitutional. Indeed, subsequent to Enmund. the Supreme Court of Georgia interpreted the scupe of the term “similar cases” as including those in which the death pen- alty could have been sought by the prosecutor but was not. Horton, 249 Ga. at 580 n.9, 295 S.E.2d at 289 1.9. Under these circumstances. it is clear that the majority's construction of $ 414 +e) 4), restricting the relevant inven- tory of cases to those in which the prosecutor has sought the death penalty and excluding those death-elizible cases in _C. 67 eee em | | TICHNELL v. STATE +29 432] Dissenting Opinion which the prosecutor has not, raises serious doubts as to its constitutionality. Such a construction should be avoided. *’ I am cognizant of the majority's statement that “we do not preclude any defendant whose death sentence is under appellate review from presenting argument, with relevant facts. that designated non-capital murder cases are similar to the case then under scrutiny and should be taken into account in the exercise of our proportionality review function.” I do not agree. however. with the members of this Court who concur with the majority's result in this case that the majority's construction of } 414 ‘e) (4) “becomes aca- demic and of little or no practical consequence.” in light of the Court's expressed willingness “to consider murder cases in which the State did not seek the death penalty. and which are brought to the Court's attention by the defendant.” In essence. after determining that the relevant inventory excludes death-eligible cases in which the death penaity has not been sought, the majority affords the defendant the right to argue that certain such cases should nonetheless be taken into account. Affording a defendant such a right does not eliminate the fatal defect inherent in the proportionality review procedure prescribed by the majority. The fact that a defendant is afforded a right to argue that something should be included in the relevant inventory does not mean that it will be. Thus, although the majority permits death-eligibie cases in which the death penalty has not been sought to be taken into account, it does not require the consideration of all death-eligible cases. Consequently. the relevant inven- tory of cases remains restricted to those in which the death penalty has been sought and continues to exclude all death-eligible cases in which the death penalty has not been sought. In short, in my view, the majority's statement does nothing more than afford the defendant the right to argue 17. A construction of a statute. giving rise to douots as to its roy age 4 tte Davis ¥ State. 294 Md. 370. 377. 451 A.24 107, i111 (19862): Baltimore County v Missour: Realty. Inc.. 219 Md 185, 159. 148 A.2d 424. 427 11959", Barrect v Clark, 199 Md. 116, 127. 54 A.24 128, 133 (1947). r_L68 500 TICHNELL v. STATE Dissenting Opinion (297 Ma. that certain cases excluded from the inventory todav should be included and considered tomorrow. Additionally, even if death-eligible cases designatea by the defendant in which the death penalty was not sought were to be taken into account, the fatal defect inherent inthe proportionality review procedure prescribed bv the majority would not be eiiminated. Under such circumstances. as a practical matter. there wouid still be no assurance that a!/ sim:lar death-eligible cases in which the death penalty has not been sought would be considered in determining whether the imposition of the death pena!rtvy is fair and con- sistent. Only cases of which the defendant has become aware would be considered. In my view. it is the responsibility of this Court to assure that a//] death-eiigible cases in which the death penalty has not been sought, to be utilized in proportionality review. be included in the inventory. Like Judge Eidridge, the Supreme Court has recognized the enormous difficulty associated with gathering data concerniny the exercise of prosecutorial discretion. See Enmund. US. at ,102S.Ct. at 3376. The responsibility to accumuiate such data shou'd not be foisted upon the defendant. This is particularly true. in a case such as this in which the defendant is represented dv retained counse! who does not necessarily have available even the limited statistical data available to the Public Defender. In short, the majority has determined that in propor- tionality review all similar cases in which the death penalty has been sought are relevant. It has assumed the respon- sibility, through its rule-making powers. to develop an inventory of all death-eligible cases in which the death pen- alty has been sought from which relevant similar cases mar be culled. The mzjority then beiatedly indicates that similar death-eligible cases in which the death penalty was not sought may be relevant. Nevertheless, without explanation, and without any attempt to adopt a rule such as that sug- gested by Judge Cole, or any other rule, the Court refuses to develop an inventory of all death-eligible cases in which the C. 69 TICHNELL v. STATE 501 432) Diesenting Opinien death penalty has not been sought from which relevant sim- ilar cases may de culled. Uniike Judge Coie. I am not willing to assume that in the absence of a Court rule “various pros- ecutors will maintain... a data dank which they will reedily make availabie to defense cuunse!. public or private.” Under the present circumstances. there is no justification whatsoever for the majority arbitrarily to shift this Court's responsibility to the defendant and to impose upon hit a task which is difficu!t. if not impossible, to pertorm. In sum, in my view, under $ 414 e' '4:. the inventory of cases utilized for proportionalit: review must include not only those death-eligible cases in which the prosecutor has sought the death penalty, whether it was imposed or not. hut all those death-eligible cases in which the prosecutor did not seek the death pena!tv. Such a construction is supported dy the legislative history of § 414: e):4°. 1s consonant with the legislative intent that the broades: possible inventcry of similar cases be utilized in Marvland’s properuenality review procedure. avoids serious constitutionai: questions. and prevents the arbitrary imposition of an unjustified burden upon the defendant. Most important. such an inter- pretation effectuates the purpose of proportionality review — to assure consistent and fair application of the death pen- alty — and, therefore, is favorable to the accused. | agree with Judge Seiler who in a dissenting opinion in Stare v. Mercer, 618 S.W.2d 1, 21 ‘Mo. 1981: ‘Seiler, J.. dissenting: stated: “By ‘similar cases’ is meant similar capital murders, not limited only to those where both death and life imprisonment were submitted to the jury and then affirmed on appeai. whichev.r way the case went on punishment. The evil deed is the murder and what accompanied it and that. as well as the defendant. is what must be looked at in comparing what one defendant received in pun- ishment under a capital murder charge with what another received. The fact... that the state waived the death penalzy in (a capital murder detendant 3} 2. 70 502 TICHNELL v. STATE Dissenting Opinion. (297 Mu. case... does not mean that we can ignore his case in making our comparison. Once we accept the idea. as we must, that the death penalty cannot be inflicted at random, or arbitrarily or inconsistently. then necessarily we must take into consideration ali capital murders we know about.” ‘Emphasis added.) Ul Even if I agreed with the majority that under § 414 ie: ‘4, the relevant inventory of similar cases is restricted to “first degree murder cases in which the State sought the death penalty... whether it was imposed or not,” I would not agree with the majority's conclusion “that the death sentence imposed upon Tichnell was neither excessive nor disproportionate to the penalty imposed in similar cases in Maryland, considering both the crime and the defendant.” This is the first case in which this Court has engaged in proportionality review in order to determine whether a death penalty is excessive or disproportionate. It is, therefore, important that the process be defined. The Eighth Amendment concept of proportionality involves more than merely a measure of contemporarv stan- dards of decency. It also requires that the magnitude of the punishment imposed be related not only to the degree of harm inflicted on the victim, but also to the degree of the defendant's mora! culpability. Enmund, US.at ,102 S.Ct. at 3386, 3390-91 ‘O’Connor, J., dissenting). The General Assembly has imposed the responsibility of determining whether a death penalty is excessive or disproportionate upon this Court. The aggravating and mitigating circumstances established by the General Assembly represent a legislative judgment that each of those characteristics affects the moral culpability attributable to persons who commit crimes. In making our legislatively mandated comparison. this Court must take each of the relevant distinguishing characteristics into C.71 TICHNELL v. STATE we o te) 432] Dissenting Orinion. account. The General Assembly further d:rects this Court. after comparing all of the distinguishing characteristics present in similar cases. to determine whether the defendant in a given case warrants the death penaity. Such a deter- mination requires this Court, utilizing all of the applicable legislative judgments with respect to mora! culpability. to decide in essence whether a defendant's moral culpability is closer to the moral culpability attributable to those sen- tenced to death or to those sentenced tu iife imprisonment. Manifestly, a comparison between the degree of mora! culpability attributable to a given defendant in a given case. and that attributable to other similar defendants in similar cases is the core of proportionality review. : In considering whether a death penalty is excessive or disproportionate, it 1s necessary to determine whether in similar cases the death penalty is generally imposed throughout the State. Thus. it is necessary to show that the degree of moral culpability attributabie to the defendant is at least as great as that attributable to others in similar cases ser.tenced to death. If it is questionable whether the defendant's morai culpability is ac least as great as that of others sentenced to death, the focus of proportionality review necessarily shifts from a determination of whether in similar cases the death penalty has been generally imposed throughout the State, to whether the defendant's moral culpability so far exceeds that of others in similar circum- stances sentenced to life imprisonment that the imposition of the death penalty is justified. Thus, the process of proportionality review demands the striking of the most delicate balances — balances about which reasonable persons may differ. Consequently. it is necessary to proceed with the utmost caution and the greatest care, for in the final analysis. at stake is the delicate balance between the life and death of a human being. One difficulty inherent in the proportionality review pro- cess, acknowledged by the majority, is the selection of sim- ilar cases from the relevant inventory of cases. The majority recognizes “that dissimilarities exist between Tichnel!’s case C.72 — 504 TICKNELL v STATE Dissenting Opinion. [297 Ma. and those selected for comparative review.” It laments that “these cases. as well as others in the inventory. are not more similar to Tichnell’s case.” Notwithstanding these inadequacies in the inventory, the majority feels compe! led to “complete the comparative review process mandated bv § 414 :1e)14).” In so doing. it has determined that there are only five similar cases in the inventory. As a result. the majomty has failed to take into account a number of sirmtlar cases consider.ng both the crime and the defendant. In my view, there are ten cases in the inventory having distin- guishing characteristics similar to those in this case that should be considered here.'* three of which are considered by the majority.” In order to determine whether under § 414 ‘e) :4) the imposition of the death penalty is excessive or disproportionate. it is necessary to compare s:milar cases considering both the crime and the defendant. With respect to the circumstances of the crime in this case, the record shows that at approximately 5:25 a.m., Tichne!l and a con- federate broke into a store for the purpose of stealing guns. The store was not then open and nobody was present. Tichnell's departure from the scene was interrupted by a deputy sheriff whom he shot and «killed. Wher the poiice discovered the deputy sheriff, he was lying face down near the store. He had been shot seven times and was dead. Of the 18. See State v. Harris. Criminal Case No. 75400. Circuit Court for Baltimore County. filed 9-6-33: State v. Monroe. Criminal No. 26242. Cir- cuit Court for Montgomery County. filed 12-9-82: State v. Juhnson. CT 82-377, Circuit Court for Prince George's County, filed 12-1-82; State v. Green. _ No. 13108220-22, Crimina! Court tor Baltimore City. fied 7-12-82; State v. White. ag No. Yo Cirevit Court for Baltimore County. tee nn ange Fy, riminal No. 25917. Circuit Cour: for = peaalty” from the relevant inventory of sim- ilar cases, I am unable to determine, Pursuant to § 414 ie) '4), that the sentence of death imposed upon Tichnell is excessive or disproportionate to the penalty imposed in sim- C. 83 ur e~ TICHNELL v. STATE +32] Dissenting Opinion. ilar cases, considering both the crime and the defendant. Moreover. even if I agreed with the majority's restriction of the relevant inventory of similar cases, based upoon my statutorily mandated proportionality review, | would hoid that the sentence of death in this case is excessive and disproportionate. | therefore would set the sentence aside and remand for modification to life :mprisonment.~* 39. In lignt of this conclusion. | need not consider the other issues addressed in the majomty op1nI10n. ~ ~~ C. 86 TICHNELL v. STATE it 8) = (297 Md. Appendix. APPENDIX I STATISTICAL SUMMARY OF RECORD JUN IN CALHt V. STATE RELATING TO PROSECUTORIAL SS ‘= - —~—Zz arPerc=t Tera, 222 of the handgun violations. The Court reviews the case pur- suant to Md. Code, Art. 27, § 414. The appeal was initially argued on October 8. 1982. The issue relating to proportionality review was argued on January 6, i983. Judgment affirmed. The cause was argued before Murpny, C. J., and Surru, Evpaince, Core. Davinson, Ropowsxy and Coucn, JJ. Gary W. Christopher and George E. Burns. Jr.. Assistant Public Defenders. with wham were Alan H. Murreil, Pubiic Defender, Arthur A. DeLano, Jr.. Assistant Public Defender. Courtland K. Townsend. Jr., Assigned Public Defender, and James Cromwell. Assigned Public Defender, on the brief, for appellant. ; Richard B. Rosenblatt. Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Deborah K. Handel, Assistant Attorney General, on the brief, for appellee. Supplemental argument on January 6, 1983. George E. Burns, Jr., Assistant Fublic Defender, for appellant and F. 8 Oe et ee ew CALHOUN v. STATE 571 563] Opinion of the Court. Deborah K. Handel, Assistant Attorney General. for appellee. Ssrru, J., delivered the opinion of the Court. Davipsow. J.. dissents and filed a dissenting opinion at page 646 in/sra. in this case we shall affirm a death sentence. In the pro- cess we once again are involved with the matter of hyp- notically enhanced testimony, this being the fifth of a series of cases presenting that issue. See State v. Collins, 296 Md. 670, 464 A.2d 1028 (1983); State v. Metscher, 297 Md. 368, 464 A.2d 1052 (1983); Simkus v. State, 296 Md. 718, 464 A.2d 1055 (1983), and Grimes v. State, 297 Md. 1, 464 A.2d 1065 (1983). James Arthur Calhoun was convicted by a Montgomery County jury of first degree, premeditated murder in the death of Philip Metz ‘principal in the first degree). murder in the first degree (felony murder) in the death of Davia Myers (principal in the second degree). attempted murder of Douglas Cummins, two violations of the handgun law. robbery with a deadly weapon, and storehouse breaking. A jury sentenced him to death for the murder of Metz. Life imprisonment was imposed for the murder of Myers. He was sentenced to thirty years for the attempted murder of Cummins. The sentence for each of the handgun violations was imprisonment for fifteen years. He was sentenced to twenty years on the robbery charge and to ten vears on the count for storehouse breaking. All sentences imposed are to run consecutive to each other except for the sentence for storehouse breaking which is concurrent. The case reaches us by virtue of the provisions of Maryland Code ‘1957. 1952 Repl. Vol.) Art. 27, § 414 which states that whenever the death penalty is imposed we shall review the case. i The facts The facts are not in dispute. Pursuant to Maryland Rule 828 g the parties have entered into an agreed statement of facts. We shall repeat only so much of the grisly detaiis of this incident as are necessary for a clear understanding of the case and our decision. een eneneeeaen 572 CALHOUN v. STATE Opinion of the Court. {297 Md. The W. Bell store is located at 1130 New Hampshire Avenue in White Oak. Montgomery County. Banging noises coming from the area of the Bell store were heard by a neighbor across the street at approximately 11:00 p.m. on March 26. 1981. She saw shadows in the area of the roof at the back of the store. The neighbor notified her father. wno went outside their home with a flashlight to investigate. He saw people leaving. She saw a car, which looked like a hatchback, parked across the street. An employee of Electro Protective Corporation testified that at 6:16 a.m. on March 27, 1981, both the safe alarm and the perimeter. alarm at the Bell store were activated. He + notified the police; Douglas T. Cummins, Jr., Bell’s assistant manager: and David W. Myers. an employee of Electro. Offi- cer Philip Carl Metz. the police officer covering that beat on that particular day, was dispatched to the Bell store. Cummins testified that at approximately 6:20 or 6:25 a.m. on March 27 he received a telephone call from Electro. He arrived at the store at about 7:00 a.m. at which time he saw a white station wagon with Electro’s name on the door in front of the store. He observed a late modei two-door black Cadillac on the other side of the parking lot. A black male in the front seat was the sole occupant. The technician in the Electro vehicle identified himself to Cummins. Cummins drove around the store and noticed [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1780%3A2. Public record. Not legal advice.