Tichnell v. State

RICHARD DANNY v. TICHNELL STATE OF

MARYLAND Term, September [No. 1982.] Decided November 1983. 30, 1983; filed November reconsideration Motion for 5, 1983. denied December J., and Smith,

The cause argued was before Murphy, C. Rodowsky JJ. Couch, Eldridge, Cole, Davidson, Poling on the Frame, Clark D. B. was Richard with whom brief, for appellant. Lane, Assistant

Deborah J. Stephanie K. Handel and General, Stephen Sachs, Attorneys with whom H. Attor- brief, General, appellee. on the for ney Supplemental argument January 6, on 1983. Clark B. appellant Frame for Handel, and Deborah K. Assistant Attorney General, appellee. for J., Court, C. delivered the opinion of the in which

Murphy, Eldridge Cole, JJ., J., concur and dissents. Davidson, J., filed a concurring opinion at page infra; Eldridge, J., concurring opinion filed a page infra; at Cole, J., filed a dissenting opinion at page 485 infra. Davidson, 23, 1979, On August Danny Richard Tichnell was found guilty by jury wilful, deliberate and premeditated degree first murder Deputy Sheriff Livengood. David The State sought imposition the death under Maryland’s capital punishment statute, Maryland Code (1957, Vol.), Repl. 27, 412-414, §§ Article inclusive. Tichnell waived statutory his right jury to have the deter mine whether the death penalty should imposed be upon him; he elected instead to have the judge trial decide the issue. The court sentenced him to appeal, death. On we affirmed the murder conviction but vacated the death sen tence on the ground that it had been imposed undér the "arbitrary influence of an factor” in violation of Art. (e). (1). § 414 We remanded for a sentencing new hearing. (1980) State, (Tichnell Tichnell 695, 415 v. 287 Md. A.2d 830 I). Thereafter, Tichnell elected jury to have a determine whether the death penalty imposed should be upon him. The jury concluded that death appropriate was the penalty. On appeal, again we vacated the death sentence and remanded for a new sentencing hearing; we concluded that the trial judge had committed reversible error in admitting certain prior recorded testimony trial in evidence over Tichnell’s objection. (1981) State, Tichnell v. 290 Md. 427 A.2d 991 (Tichnell II). At his capital third sentencing hearing, again Tichnell elected to be by jury. sentenced jury appeal this followed.

I Tichnell contends that he was denied due of law at process his capital sentencing hearing because the court-conducted

437 expose to bias on too limited voir dire examination the court jurors. argues He erred part prospective of the conduct the voir dire denying personally his motion to jurors. support argu- In of this of the individual examination ment, impossible prepare that it was "to suggests Tichnell questions, dire examination sub- appropriate advance voir court, by until counsel ject rejection to or the trial acceptance opportunity had an to observe and ascertain decorum courtroom, the nature and in the to hear atmosphere inquiries, dire reach of the trial court’s voir examination their get prospective jurors to of the and note view responses or to the initial voir dire attitude and silence examination.”

Maryland provides: Rule 752 to conduct an may parties permit

"The court may or itself con- jurors of prospective examination If the court conducts the examination. duct examination, parties supple- permit it shall inquiry it by any further ment the examination to the shall itself submit proper deems questions additional prospective jurors proper.” it by parties deems proposed rule, judge of the the trial provisions Consistent with the J.) (Bowen, proceedings announced at the outset questioning prospective he voir dire would conduct the submit jurors ques- additional permit and would Tichnell by jurors. The court propounded tions to be the court to the exposing aimed at questions thereafter asked a number of juror Tichnell additional voir partiality. bias or submitted court, questions dire to the all of which court asked the prospective jurors. must, jury course, selection process satisfy

essential guaranteed by demands of fairness fourteenth amendment process order to afford the accused his due right Ross, 589, impartial jury. an See Ristaino v. 424 U.S. 6, 1017, (1976); 595 n. 96 S. Ct. L. 47 Ed. 2d 258 Ham v. Carolina, 524, 848, South 409 U.S. 93 S. Ct. 35 L. Ed. 2d (1973). The voir prospective jurors pro- dire examination of tects this right exposing grounds the existence of for disqualification. State, See v. Couser 282 Md. 383 A.2d denied, (1978); State, cert. Langley U.S. v. (1977). 337, Md. A.2d 378 1338 Maryland Rule 752 but not permits, require, does individ voir prospective jurors ual dire examination of counsel. The matter is committed to sound discretion of the trial judge; right counsel, there no absolute vested in otherwise, or to constitutional conduct individual voir dire. See, State, e.g., Langley 337, v. 281 Md. 378 A.2d 1338 (1977); Bryant State, v. 565, (1955); 207 Md. 115 A.2d 502 Handy State, 39, (1905); v. 101 60 Md. A. 452 United States (4th Duke, denied, 1969), v. 409 F.2d 669 Cir. cert. 397 U.S. (1970) (defendant has no constitutional to right coun dire); Commonwealth, sel-conducted voir Turner v. 221 Va. (no (1980) 513, 273 S.E.2d 36 to right constitutional individ dire). jury State, ual voir See also Irvin v. P.2d (Okla. 1980). App. Crim. any

Tichnell not specific has identified or par deficiencies shortcomings ticular in the court’s voir dire examination of prospective jurors. Instead, generalizes that he court’s during "attitude dire disposition” voir were impartial antithetical to fair and jury selection. He com plains that court’s questioning of prospective jurors was brief, so stiff and short to have him stormy as left "on a sea without compass Manifestly, allegations rudder.” these are insufficient to jury demonstrate that pro selection cess failed to impartial jury. assure Tichnell a fair and We conclude, therefore, that no error appears on the record in respect this with judge’s case to the trial conduct voir dire in conformity examination with the dictates of Rule State, 752.1 See 167, also Poole v. 295 Md. 453 A.2d 1218 (1983). appended mother, 1. Tichnell has to his brief an affidavit of his which was executed three months after the death sentence had been on jurors son. approached her the course of the of her their decision. on his sion during affidavit states that two his mother sentencing proceeding, questioned identity her as to companions, helpful making bearing said the information would be suggests alleged Tichnell that this incident has some argument ineffective, although that the voir was dire from the discus- brief, significance any event, his its is unclear. In the affidavit was presented

never court; therefore, trial it is not this Court before for Sturgis State, 343, consideration. See v. 235 Md. 201 A.2d (1964); Maryland Rule 885.

II sentencing proceeding that this third Tichnell contends comply with the failed to the State null void because (b). 27, § 412 That section pro- of Art. requirement notice guilty degree of first vides, alia, person found inter that unless imprisonment life must sentenced to murder be "the State notified the person writing at least 30 to seek a sentence days prior to trial that it intended each person of death, and advised it intended upon circumstance which aggravating rely ....” statutory notice timely requisite received the Tichnell State his trial. He was advised original before circum- prove aggravating the existence of two intended — law officer Livengood was a enforcement stances in the duties and that murder performance killed of his an to escape attempt in furtherance of an was committed by law enforcement escape from or evade lawful arrest a (b) State require give 412 not that the officer. Section does commencing capital sentencing additional notice before "trial,” context of its Plainly, the word in the proceeding. (b), encompass resentencing pro- 412 does usage not a ceeding.

Ill sentencing proceeding third Tichnell maintains his by Jeopardy was barred the Double Clause Eifth Amendment.2 He contends that the trial court’s conduct sentencing proceeding "judi the second constituted capital resentencing cial which further overreaching,” barred "intentionally deliberately judge because the trial reading prior recorded trial tes required directed timony jury.” to the through the Due Process applicable the states provision 2. The is made 784, Maryland, 395 U.S. v. Benton Amendment.

Clause of the Fourteenth 89 S. Ct. (1969). 2056, 707 L. Ed. 2d 23 440 overreaching”

"Judicial significant is for purposes of double jeopardy when is mistrial declared at the behest Generally, the defendant. may defendant be reprosecuted if motion, initial trial resulted a mistrial his on United Jorn, 470, 485, 91 S. States v. 400 547, 557, 27 U.S. Ct. L. Ed. 543, (1971); 2d State, 495, 508, Jourdan v. Md. 388, (1975), A.2d being rationale that the defendant has "right elected terminate the to have his trial com by pleted a particular Kennedy, tribunal.” See v. Oregon 667, 672-74, 2083, 2087-88, U.S. 102 S. Ct. 416, 72 L. 2d Ed. (1982).' 422-23 engaged Where court in misconduct with provoke the intent to mistrial, defendant’s motion for a retrial could be barred the double jeopardy Id. at clause. 679, 102 2091, at S. Ct. 72 L. 2d Supreme Ed. at 427. As the recently Court explained: case,

"In such a right the defendant’s valued to com- plete jury his trial before first be a would hollow shell if the inevitable motion for mistrial were held prevent a later invocation of the bar of double jeopardy ....” 2088,

Id. at 102 S.Ct. at 72 L. Ed. 2d at 423. When a completed defendant’s trial and his conviction later reversed on appeal, pertain. different rules With some exceptions, successfully challenges defendant who his may retried, conviction be under the rationale that "the wiped defendant parties may the slate clean start anew.” State, 625, 420 1241, 1244 Jones v. 288 Md. A.2d (1980), (1981). denied, cert. 449 U.S. 1115 capital

Tichnell’s second sentencing proceeding did not mistrial; rather, end proceeding the completed. was the While sentence was later imposed vacated Tichnell, II, supra, 290 Md. trial the court’s conduct did not amount judicial to overreaching. Rather, the judge simply trial was mistaken in his belief that it that was essential the tran- be introduced original trial testimony of in TichnelFs script sentencing jury to have before as the permit in evidence so to before the testimony produced that identical was it the proceeding. of the stage the innocence guilt at factfinder provoke intended Manifestly, the court’s action not nothing in that to move for a mistrial. We conclude Tichnell capital third prevented a jeopardy bar of double II, Tichnell, See sentencing in TichnelFs case. proceeding 290 Md. supra, at 64.

IV resentencing record in this next contends that Tichnell penalty. He the death support imposition not of case does resentencing at argues the evidence adduced at respects produced from that hearing differs in material trial; killing of version original his if sustains his sentence Deputy Livengood; of and that the death also him must be vacated. Tichnell maintains upon therefore him constitutes cruel imposed upon that the death sentence Eighth and punishment in violation of the and unusual Constitution and Fourteenth to the Federal Amendments Rights. of This is Maryland Article 25 of Declaration so, claims, been made to particularly because he has he hearings, through sentencing each capital suffer three Proper imposition which resulted of a death sentence. arguments that we consideration of TichnelFs necessitates Maryland pertinent provisions capital review the of the statute, law, sentencing governing evidence underlying TichnelFs conviction and sentence.

(A) (b) Maryland provides that a Section statute degree person guilty found of murder in the first must be (1) life notifies imprisonment sentenced to unless the State it writing days prior the accused at least 30 trial that (2) penalty, to seek advises the accused of intends it "aggravating upon each which intends circumstance” (3) rely obtains the death accordance with § provisions complies statute. the State 413 of the Where found prerequisites, guilty with these accused is (a) separate murder in the that a degree, requires first 442 held,

sentencing hearing jury be either before a or before the court, if the defendant right jury hearing. waives his to a (c) Section provides following 413 that the type evidence sentencing hearing: admissible at the "(i) any relating mitigating Evidence to circum- (g); stance listed in subsection (ii) any relating aggravating Evidence to circum- (d) stance listed in subsection of which the State had (b); § notified the defendant pursuant to

(iii) any prior convictions, Evidence of criminal pleas contendere, of guilty or nolo or the absence of prior such or pleas, convictions to the same extent admissible in sentencing procedures; other

(iv) Any presentence investigation report. How- ever, any recommendation as to sentence contained admissible; the report is not

(v) Any other evidence that the court deems of probative sentence, value and relevant provided the defendant is accorded a fair opportunity to rebut any statements.” (d) statute, §

Under the sentencing authority, either judge jury, enjoined whether, or is first to consider beyond doubt, any reasonable statutorily of ten delineated aggravating circumstances exist.* 456Ifthe sentencing author- aggravating

3. The circumstances are: "(1) The victim was a law enforcement officer who was performance murdered while in the of his duties. (2) The defendant committed the murder at a time when he was any confined in correctional institution. (3) The defendant committed the murder in furtherance of an escape arrest, attempt escape custody, or an from or evade the lawful by guard or detention of or an officer or of a correctional institution or a law enforcement officer. (4) hostage attempted The victim was a or taken to be taken in kidnapping attempt kidnap course of a or abduction or an abduct. (5) The victim was a child abducted in violation of of this article. (6) pursuant The defendant committed the murder to an agreement promise or contract for remuneration or the of remu- neration to commit the murder. find, doubt, ity beyond reasonable the existence does not circumstances, sentence aggravating one or more of the the (f). If, however, § 413 the imprisonment. must be life the beyond finds a reasonable doubt sentencing authority factors, then it must aggravating existence of one or more evidence, whether, any of the by preponderance determine a 234 § (g).* 413 5678The eight "mitigating of circumstances” exist. (7) employed person engaged or another The defendant pursuant was committed to an commit the murder and murder agreement neration. promise or the of remu- or contract for remuneration (8) murder, was under sentence At the time ofthe the defendant imprisonment of death or for life. (9) The defendant committed more than one offenseof murder in degree arising the same incident. first out of (10) committing The defendant committed the murder while or arson, attempting robbery, rape to commit or or sexual offense in degree.” the first mitigating 4. The circumstances are: (i) "(1) guilty previously The defendant has not been found of a (ii) violence; guilty plea

crime of a on violence. As used in this entered a of or nolo contendere to (iii) charge violence; judgment probation of a crime of or had a of stay entry judgment charge of entered on a of a crime of paragraph, 'crime of violence’ means abduction, arson, escape, kidnapping, manslaughter, except invol- murder, untary manslaughter, mayhem, robbery, rape or sexual degree, attempt any offense in the first or second of these or an to commit offenses, handgun in or the use of a the commission of a felony or another crime of violence. (2) participant in defendant’s conduct or The victim was a consented to the act which caused the victim’s death. (3) duress, The defendant acted under substantial domination or provocation tute person, of another but not so substantial as to consti- complete prosecution. a defense to the (4) capacity The murder was committed while the of the defen- appreciate criminality dant to of his conduct or to conform his requirements substantially impaired conduct to the of law was as disorder, incapacity, a result of mental mental emotional disturbance, or intoxication. (5) youthful age of the defendant at the time of the crime. (6) proximate The act of the defendant was not the sole cause the victim’s death. (7) unlikely engage It is that the defendant will further crim- activity continuing society. inal threat would constitute (8) Any jury specifically other facts which the or the court sets writing mitigating forth in that it finds as circumstances in the case.” requires statute that a sentence of imprisonment life be if, by a preponderance of the evidence, sentencing authority mitigating finds that circum (h) outweigh aggravating stances (1) circumstances. (3). sentencing authority If the concludes that the do mitigating outweigh aggravating not circumstances evidence, a preponderance circumstances sen (h) (2).5 imposed. § tence of death must be At the conclusion evidence the sentencing at (c) (3) hearing, trial judge required by § to instruct jury "as to the it findings must make order to deter- mine whether the shall sentence be death or imprisonment for life and the applicable burden of proof to these findings” in accordance with the governing provisions §of 413. (i) requires

Section the determination of the sentencing authority and, be in if writing jury, must a be by signed unanimous and the (j) foreman. Section 413 requires sentencing authority the to specify:

"(1) Which, any, if aggravating circumstances it exist; to finds

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

(3) Whether any mitigating circumstances found (g) outweigh under subsection aggravating the cir- (d); found cumstances under subsection (4) Whether the aggravating circumstances (d) found under outweighed by subsection are not mitigating (g); circumstances under subsection (e) (1) 5. Section 413 only of the statute makes principal clear that degree the subject first penalty, the except death where the aggravating (d) charged (7). § circumstance is that prin- outlined in A cipal own degree actually the first crime, "is one who by commits either his hand, by agency an by or agent.” inanimate or an innocent human Ward, 189, 197, (1978). State v. 284 Md. 396 A.2d 1041 (5) sentence, determined accordance with (h).” (f) or subsection (k) requires impose

Section 413 that the court the sentence (f) (h); § by jury under or it further determined jury a sen- specifies impose that the court dismiss the jury, if the within a reasonable imprisonment tence life time, agree imposed. is unable to as to the sentence to be (1) adopt proce- this Section 413 authorizes Court rules of govern capital sentencing pro- dure to conduct of ceeding, any sentencing forms to used including be authority making findings its written and determination of sentence.

Section 414 sen- entitled "Automatic review of death (e) tences” in subsection requires that this Court review imposition of the death on the before the record sentencing authority in order to determine:

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

(2) supports or jury’s Whether evidence statutory court’s of a finding aggravating circum- (d); stance under

(3) supports jury’s Whether evidence or court’s finding aggravating circumstances outweighed by circumstances; are not mitigating (4) Whether sentence of is excessive disproportionate penalty imposed to the in similar cases, considering both the crime and the defen- dant.” respect

With to the "similar review proportionality cases” (e) (2) (f) (4), § provision § of 414 requires that this Court "include in its decision a to reference the similar cases which it considered.” (f) (1)

Section 414 mandates that this Court either affirm (2) sentence, set it aside and remand for a new (3) sentencing proceeding, or "[s]et aside the sentence and remand for a imprisonment modification of the sentence to for life.” 772A,

Maryland adopted by Rule pursuant this Court to (1) § statute, prescribes by a verdict form for use the sentencing authority making findings its and deter mination. The form pertinent statutory language tracks the §of 413 and directs the sentencing authority specify, by "yes” answer, or "no” aggravating whether and/or mitigating by circumstances were established the evidence.6 The guides verdict form the sentencing authority in its final § determination of sentence within the formulation of 413 of the statute. The requires rule that the verdict form signed be by juror. requires each It f subparagraph the trial judge complete report, the detailed content of which the prescribes. rule The report pertinent calls for information pertaining crime, to the accused and the requires trial judge to describe the "facts of offense” and state his opinion as to justified.7 whether the death sentence was rule requires judge that the trial report send his to counsel for the parties for comment as to its accuracy. factual Coun sel’s comments are required to be attached to the trial judge’s report; report must be promptly filed "with the court, clerk of the trial and in the case of a life sentence with the Clerk of Appeals.” the Court of provides space permitting sentencing authority 6. The verdict form state, writing, any mitigating may other which it circumstances find specifically mitigating in addition to the listed circumstances outlined (g). § 413 (b) court, requires 7. Section 414 of the statute that the clerk of the trial transmitting capital sentencing hearing, the record of the include the report judge, of the trial which is to contain "a recommendation the trial imposition justified court as to whether or not of the sentence of death is the case.” appended 8. The "Committee note” "[i]n to Rule 772A states that the case report judge of a life sentence the is filed with the Clerk of the Court Appeals only purposes permit of determination in other cases for informational that Court to make the (e) Code, required by (4),” Article i.e., provision review of the statute.

(B) I, In Tichnell supra, 729, 287 Md. at we held that Maryland’s capital statute, 1978, sentencing enacted in "on face, its ... requirements satisfies the of the Eighth and Fourteenth constitution, Amendments to the federal Art. 25 of Maryland Declaration of Rights.” We so concluded after reviewing a Supreme number of Court cases concerning the constitutionality of penalty statutes, death beginning with Georgia, 238, Furman v. 408 U.S. 92 S. Ct. 2726, 33 (1972), L. 2d Ed. and including Gregg v. Georgia, 153, 2909, 428 U.S. 96 S. Ct. 49 L. Ed. 2d 859 (1976); Florida, 242, Proffitt v. 2960, 428 U.S. 96 S. Ct. 49 L. (1976); Ed. 2d Texas, 262, Jurek v. 428 U.S. 96 S. (1976). 2950, Ct. 49 L. Ed. 2d 929 We noted the holding in Furman, namely, that death sentences administered under statutes which general vested trial courts of jurisdiction with the discretion person to sentence a convicted of first degree murder to either life or death violated the Eighth and Fourteenth Amendments to the Federal Constitution. We states, further noted that some including Maryland, initially misread the holding in require Furman to that a pen- death alty statute, constitutional, to be had automatically require imposition of the penalty upon death conviction of a specifically defined narrowly drawn class of first degree murder. We also noted Carolina, that Woodson v. North U.S. 96 S. Ct. (1976), 49 L. Ed. 2d 944 Supreme Court mandatory held that penalty death statutes were unconstitutional require for failure to sentencing authority to consider the character and record of the individ- ual and the offender circumstances of particular offense. Woodson declared that mandatory death penalty statutes impermissibly vested standardless sentencing discretion juries. 428 U.S. at 302-03.

We observed in Tichnell I in Gregg, Proffitt and Jurek, the Supreme upheld Court stat- utes, respectively, Georgia, Texas, Florida and all of which involved constitutionality of so-called "guided discretion” statutes. In Gregg, the Court’s

plurality upheld constitutionality of such stat- opinion attack. against Eighth utes and Fourteenth Amendment holding The Furman as that the death Court there construed penalty sentencing procedures under imposed could not be penalty that created a substantial risk that would be manner; arbitrary it capricious inflicted in an said: that is "Furman mandates where discretion body sentencing grave afforded a on a matter so as . the determination of whether a human life should suitably spared, be taken or that discretion must be of directed and limited so as to minimize risk wholly arbitrary at capricious action.” 428 U.S. 189. I,

We in Tichnell 287 Md. at that supra, further noted Proffitt and penalty upheld Gregg, statutes guarded Jurek provisions each contained three which First, against the concerns raised Furman. each of discretionary provided new statutes for a bifurcated trial so guilt punishment separately would be determined. Second, imposition penalty of the death was restricted aggravating cases which certain circumstances were authority sentencing required established. The was also consider the circumstances. The mitigating existence Jurek, type Court stated in 428 U.S. at this provision

"guides [sentencing authority’s] and focuses the objective particularized consideration of the cir- and the indi- cumstances of the individual offense impose vidual offender before it can a sentence of death.”

Finally, upheld provided expedited the statutes that were for appellate of the death statute a check review as against arbitrary imposition pen- the random or of the death alty. Maryland general the three complies statute with guiding sentencing

methods of the discretion vested in the authority, as required Supreme Court cases. We said I, supra, Tichnell 287 Md. at 728-29: [Maryland] provides "The trial statute bifurcated procedure, and the of the death imposition sentencing is limited to cases which author- ity aggravating finds at least one circumstance. The sentencing authority required to consider the A existence of mitigating circumstances. sentence may only mitigating of death be if cir- outweigh aggravating cumstances do not cir- Although sentencing authority cumstances. statute, guided by

still has discretion it is under objective Gregg Georgia, clear and v. standards. See supra, 428 U.S. at 197-98.

"Moreover, statutory incorporates scheme major arbitrariness, i.e., safeguard against third the expedited appeal automatic death sen- all indicated, enjoined this tences to Court. As we are by statute to of review each sentence death and determine arbitrarily imposed, whether it was supports finding whether the evidence the of the existence of an aggravating circumstance and outweighed it is by mitigating whether not circum- and, finally, stances whether the sentence is disproportionate to in imposed sentences similar cases.”

More recently, State, 405, 437, in v. Johnson Md. 439 542, (1982), A.2d Maryland’s § we observed that 413 of capital sentencing statute the guides discretion vested in the sentencing authority by setting objective forth clear and standards to insure penalty that the death is not inflicted an arbitrary capricious manner violation of principles. constitutional

V We proceed now imposition consider the of the death whether, this case and to determine under (e) (1) statute, of the it was of under influence (2) passion, factor; prejudice, any or arbitrary other whether statutory jury’s finding of supports the evidence (3) circumstance; sup- whether the evidence aggravating aggravating circumstances ports jury’s finding (4) circumstances; by mitigating outweighed were not "excessive sentence was whether cases, imposed in similar disproportionate to the the defendant.” considering both the crime and discloses, as did resentencing hearing The record 18, trial, January original that on the evidence at Tichnell’s a.m., a confeder- at 5:25 Tichnell and approximately Oakland, ate, Recek, Oscar broke into Davidson’s store handguns. The Maryland, purpose stealing for the of nearby sheriffs breaking triggered a silent alarm Livengood, accompanied David Deputy office and Sheriff dog, responded K-9 scene. 108-pound promptly his store, 219 and had its parallel located between Routes 219; feet approximately Route 4 was entrance on Route a.m. and from the rear the store. Sometime between 5:28 a.m., his radio that he Livengood reported police 5:31 over At investigate suspect vehicle. proceeding a.m., police received a call from approximately 5:37 Wolfe, store; he reported behind Davidson’s James who lived thereafter, arrived at the hearing Shortly police shots. Livengood’s body lying face down at scene and discovered times edge Route 4. He had been shot seven northern three and three and was dead. His service revolver with live body. pair beneath his A spent cartridges was located dep- road about 23 feet from the handcuffs was found K-9 uty’s body. Livengood’s police missing. cruiser was His from dog lying was found off of Route about feet in the left Livengood’s body; dog had been stabbed region shortly shoulder and died after the arrival of in a police. belonging A car to Tichnell was found snow-filled 4; and was partially facing ditch off of Route it was south deputy’s body. about 40 feet from the Two bullet holes were car, near the observed in Tichnell’s one at the left front door doorpost. the left area of the door lock and the other at front by Browning A 9 millimeter semiautomatic revolver owned weapon Tichnell and later identified as the homicide was found in the seat of abandoned vehicle. The front Tichnell’s loaded gun empty contained seven shells seven cartridges were found on the cartridges; spent two of floor of car behind seat. The five Tichnell’s the driver’s other 4 in casings were about a cluster near the scattered Route deputy’s body. just prior

The State’s witness Wolfe to the testified shooting facing stopped he observed a car north on Route its on. headlights dog pacing with He also a back observed headlights. dog and fourth in of the Wolfe front car’s said disappeared about after 10 seconds that 15 seconds later shots, pause, he heard a a split burst followed second the sound of spinning tires and a simultaneous second burst car, shots. Wolfe testified that he then saw a second southerly without to 30 headlights, move about 20 feet a direction on after he "thump.” Route which heard a Shortly thereafter, Wolfe noted vehicle with the headlights leave area.

Tichnell morning and Recek were arrested on the Virginia; crime in they driving West were a which vehicle Tichnell wrecking deputy’s had commandeered after cruiser the course of their from the In flight crime scene. bag containing the vehicle a guns stolen from Davidson’s store and a samurai with dog sword blood and hair on it. in the car capable Also was a shoulder holster accommodating revolver; Browning semiautomatic holster was with type matching stained blood of a Tichnell’s. shoulder, Tichnell gun right had a shot in his wound a lac- eration right eye over his On and a crushed tooth. arrest,

evening of his gave Tichnell the West Virginia state police admitting authorities statement that he and Recek had broken into Davidson’s store and stolen guns. some He they said that remained the store about 3 to 5 minutes were returning to their car when Recek said that he had lost the loaded .38 Smith and Wesson revolver which Tichnell had given him just they before into the broke store. Because this was gun days same Tichnell had stolen 3 earlier store, it his and because contained

from Davidson’s steps Recek to retrace his Tichnell directed fingerprints, detection, Tichnell said than risk weapon. find the Rather time give area to Recek that he drove around the Oakland that he returned gun. police Tichnell told the to find the lost direction, up Recek southerly pick in a moving to Route blocking his lane. facing cruiser north police when he saw a moment, headlights, which Tichnell said that his car At this time, He went out. period had defective for some been officer, hand, apprehended had gun that an observed he the Tichnell said lying ground. Recek and had him on got police the car and car about 15 to 20 feet from stopped his time, pointed the officer headlights. At this repair out to his on the road. him and told him to lie down weapon his at dog order his K-9 complied deputy Tichnell and he heard the Tichnell and as he looked dog stood over to watch him. through the eye his up dog bit him on the side of out with Tichnell said that he screamed inside of his mouth. in a running and started around pain, hysterical, became dog had torn his dog. Believing circle to avoid kit out, get a medical aid which eye Tichnell ran to his car Tichnell heard the point seat. At this kept he the back Recek; then deputy dog order the to watch deputy car, placed his him around spun followed Tichnell to time, the on the driver’s side of gun in face. At this door his said he moved open. vehicle was Tichnell Tichnell’s two-door requested face and deputy’s weapon from his eye. Tichnell tend to his wounded permit officer him to his gun against his deputy put stated that (Tichnell’s) then of about and shot him from a distance shoulder him that the shot knocked a foot and a half. Tichnell said deputy’s grabbed that he the barrel into his car and tried to deputy that the then gun as he fell. Tichnell said holding still down for another shot. While bring gun his which gun he reached for his own deputy’s gun, Tichnell said con- of his car. As the scuffle kept he under the front seat narrowly missing tinued, again, fired the bullet deputy he that because head. Tichnell stated top of Tichnell’s he fired again, him thought deputy going to shoot He said deputy point-blank range. four five shots at the at head, deputy the in and he was that first shot struck the the certain that he was dead. that Recek acknowledged

Tichnell in his statement he and attempted moving in car. to leave the scene Tichnell’s After feet, about 30 or 40 said that car slid on the ice Tichnell Realizing went that was and offthe road into a ditch. his car cruiser, stuck, Tichnell decided take the but deputy’s to attempted dog sitting found the in the front seat. As Recek car, get dog in the him. open lunged door of the at Tichnell his sword his car thereupon removed samurai from shoulder; dog and stabbed its he behind left when sword, withdrew the dog rolled out of the car. Tichnell said that he Recek in deputy’s and then fled cruiser but Thereafter, subsequently wrecked it. he and Recek obtained another flight vehicle continued their into West Virginia. Tichnell’s statement was introduced evidence before the sentencing jury. by

Other evidence adduced State showed that fatal, deputy’s seven shots into body fired two were one in the lower back and the other the back the head. No powder upon burns were found on the clothing or the wounds of Tichnell Livengood. or State produced testimony that feet, had the shots range been fired at a than 3 less burned powder clothing residue would been on have found wounds of both the deputy and The expert Tichnell. witness concluded that the shots were fired at a distance greater than 3 produced by feet. Evidence the State that Tichnell’s bloody shoulder holster was recovered at the of his time arrest was intended wearing establish Tichnell was the holster at the time he was shot shoulder carried Browning his revolver it when he broke into Davidson’s store. There blood was evidence that Tichnell’s type was found on glass fragments broken from car, deputy’s windshield of the suggesting that the lacera- tions over eye may Tichnell’s have time been received at the Tichnell the deputy’s According wrecked cruiser. to one of the arresting troopers, when Tichnell first he arrested eye

attributed the cut on his to the car accident did not dog mention a bite. Evidence was also adduced to show that of the time view involved between the break-in at the store, shooting deputy, and the Tichnell could not have traversed the 2.3 mile route around Oakland which he said he had taken.

Recek, years crime, who was 32 old at the time of the testimony, testified on Tichnell’s behalf. In the course of his acknowledged he entering Davidson’s store with a loaded gun given Tichnell. He said that Tichnell told him him store, that because of the silent alarm at the it was critical they be out of the store less than 5 minutes. He acknowledged returning to the store at Tichnell’s direction gun, to look for the lost proceeded after which he toward Route 4. He was in the middle of the field behind Davidson’s store, said, he taillights when he saw the car on Tichnell’s 4, being by Route followed police cruiser. Recek testified that police stopped the car when the him in officer saw the field; that, so, that it then turned around and as he did Tichnell circled the area his vehicle. said that he Recek was about 10 feet from deputy, when the Route accompanied dog, gun his K-9 with his in hand and out, him handcuffs told he was under arrest and lie the to on ground. command, After this obeying Recek said he observed Tichnell’s on Route 4 headlights blinking car with its on and off. He testified that he approach deputy saw Tichnell the him; and speak that the deputy with ordered Tichnell to lie ground him; on the dog guard and directed his K-9 that shortly thereafter, dog Tichnell screamed out that the had bit him eye blind; in the and that he was that Tichnell going kit; shouted that he was get his car to a medical and at point Livengood that this ordered the K-9 leave dog to Tichnell guard and to Recek. position From his on the ground, face, with dog barking the in his Recek said he caught only "glimpse” occurred; of what next that Livengood sight Tichnell left his and he next heard a burst Of shots as the two men approached the side of car, Tichnell’s Livengood after which he observed that ground. Recek said tracking” and fall on the "back he that shooting the Tichnell said immediately after me”; he had "He or that deputy; that it was "outdrew” the that, addition, dog kill the "or choice”; he had to "No me.” got he have would of the acknowledged he had been convicted that

Recek trial Livengood separate in a felony first murder of degree Tichnell’s imprisonment. At the time of to life sentenced hearings, sentencing two original subsequent trial and any testify not and he did pending Recek’s case was proceedings. these testimony sentencing jury was the

Tichnell’s before the police on generally with his statement consistent the Additionally, he testified that he knew evening of his arrest. that had he into triggered a silent alarm been when broke on an would be Davidson’s store and also knew that officer Tichnell his scene from 2 to 5 minutes. way to the within he at he entered testified that while was unarmed the time store, carry into given he had a loaded revolver to Recek was under store. He testified his shoulder holster that shooting; at that after seat of his car the time holster with shooting put Browning he his revolver car as he taking deputy’s intention of it with him the scene; fled have out of the gun slipped that must car; he holster, abandoned remaining Tichnell’s gun his after nevertheless wore holster without point, At Tichnell testified shooting occurred. another his Livengood’s pressed against gun muzzle of that the Livengood fired first shot and shoulder when a of 6 to 8 deputy’s other shots fired from distance were inches. crime, age.

At of He years the time of the Tichnell was 32 child, graduate, was of one high school a divorced father Army record, had for prior no had served in criminal mill a number of years, several had worked at a steel for the time year for over one at years unemployed had been but of the crime.

To refute the expert testimony State’s that the shots were fired at greater feet, a distance than 3 produced Tichnell an expert witness said that he a single grain who found of powder which on coat Tichnell wearing at the time of shooting, indicating that the shots had been fired at point-blank range, had as Tichnell claimed.

At evidence, the conclusion of the Judge gave Bowen (c) (3) detailed jury by § instructions as required 413. of the statute. The jury concluded that the aggravating two upon circumstances which the State relied had been estab- only lished and that the mitigating circumstance was that Tichnell had previously not been of convicted a crime of violence. Tichnell was then sentenced to death accordance with provisions of the statute.

(A) contend, find record, Tichnell does not do nor we from the that death sentence was him upon under the passion, prejudice any arbitrary influence or other factor (e) (1). Moreover, by § violation of 414 required as (e) (2), considered, conclude, we have that the evidence sentencing authority before supports its finding two statutory i.e., aggravating circumstances, Livengood that was a law enforcement officer who was murdered while in performance duties, of his and that Tichnell committed murder furtherance an escape attempt or an by evade custody lawful arrest law enforcement officer. We case, further conclude from our required review of the as (e) (3), § 414 the aggravating are circumstances not outweighed by single mitigating circumstance had not previously Tichnell been of a convicted crime of (1). violence, §in as defined (g) (B) Review) (Proportionality I, 738-39, Md. supra, at that We observed Tichnell (4) (e) Maryland of of the statute language the to, patterned after, propor- the virtually identical and was tionality Georgia provisions review the Gregg approval noted with Supreme statute. The Court against as a check Georgia provision that functioned arbitrary penalty. Gregg, supra, of the death imposition in Gregg, U.S. at 206. As summarized provision Georgia review statute: per- a "substantially possibility eliminates of an by to die the action son will be sentenced juries generally jury. If a comes when aberrant time kind sentence in a certain impose do not case, procedures review appellate murder cir- under such no defendant convicted assure that at of death.” Id. will a sentence cumstances suffer 206. Georgia proportionality that the argued Gregg

It was inadequate "nonappealed cap- were because provisions review imposed and cases life sentence is ital convictions where a conviction is not involving capital homicides where which the group not cases obtained are included comparative purposes.” uses Supreme Georgia Court of for contention, Supreme In Id. at 204 n. 56. answer this Georgia is Supreme Court of simply Court noted that appealed does consider to consider such cases and authorized imposed. has been It where a life sentence murder cases argument petitioner’s concluded: "We do not think process is ineffec- review Georgia establishes that court’s Id. n. tive.” at 204 56. in Proffitt and Jurek Court’s decisions Supreme specific statutory provision for

indicate that the absence of not render a death stat- proportionality review will Proffitt, In constitutionally infirm. Court said: ute provides "The statute for automatic review the Supreme Court of Florida of all cases in which a death imposed.... sentence has been The law Georgia differs from that of in that it does not require any the court to specific conduct form of Since, however, review. judge justify trial must imposition of a death sentence with written findings, meaningful appellate review of each such possible, Supreme sentence is made and the Court Florida, Georgia like its counterpart, considers its '[guarantee] function to be to that [aggravating mitigating] present reasons one case will reach a similar result to that reached under similar circumstances in If another case.... die, a defendant is sentenced to this Court can light review that case in of the other decisions and determine punishment whether or not the is too (1973). Dixon, great.’ State v. 283 So.2d procedures, On their face these like those used Georgia, appear to meet constitutional deficiencies identified in Furman.” 428 U.S. at 250-51.

The process ground review was attacked on the that "the role of the Supreme reviewing Court of Florida in death sen- necessarily subjective unpredictable.” tences is Id. at contention, Rejecting 258. this the Court stated: may "While it be true that that court has not chosen objective to formulate a rigid test as its standard of cases, review for all it does not follow that appellate process arbitrary. review ineffective or fact, In apparent it is that the Florida court has undertaken responsibility perform its function of death sentence review with a maximum of rationality consistency. example, For it has compared several times the circumstances of case under review those of previous with cases which it has assessed imposition of death sentences. So.2d, 445; v. State, 307 at Alvord See, e.g., Alford State, So.2d, By following this v. at 540-541. adopted Florida has in effect

procedure court by type review mandated ante, at Georgia Gregg Georgia, Cf. v. statute. Florida court any suggestion And

204-206. review of engages only cursory rubber-stamp totally cases is controverted of the death fact that it has vacated over one-third have it.” Id. at 258-59. sentences that come before petitioner also maintained Court does not review sentences "since the Florida capital or sen- of life cases imprisonment crime capital tences in cases where imposed jury of a lesser charged but where the convicted way offense, of view it will have an unbalanced and it will jury that the treats a murder case typical affirm sentences under circumstances where death judges imposed would majority the vast have n. 16. imprisonment.” life Id. at 259 sentence of stating: rejected argument, The Court this also ante, n. Gregg Georgia, we in at 204 "As noted v. risk problem

this is not sufficient to raise a serious system will result capital-sentencing that the state arbitrary capricious imposition U.S. at 259 n. 16. penalty.” 428 an upheld provided in Jurek for Texas statute provision an for express automatic but also lacked appeal, review. The Court nevertheless assumed proportionality review, subject type to this that death sentences were stating: jury’s

"By of the providing prompt judicial review jurisdiction, decision in a court with statewide provided promote Texas a means to has evenhanded, rational, imposition of and consistent

death system sentences under law. Because this serves to assure that death sentences of will not be 'wantonly’ 'freakishly’ or imposed, it not does violate the Constitution.” 428 U.S. at 276.

It is thus principle underlying clear that the essential varieties of upheld Gregg, review Proffitt is, short, guarantee Jurek death sentences reasonably will be in a consistent manner. Tichnell I, supra, 287 Md. at 741. mind,

With principles these foundation Court sua sponte parties asked the in this case to address themselves issues, to a number of additional the first of which was: of Appeals, determining "Whether Court imposition whether the of the death sentence under (e) (4) ... sec. 414 is 'excessive disproportionate or cases, to penalty imposed considering similar (a) defendant,’ both the crime and the limited considering only first degree prosecu- those murder tions prosecutor actually where the sought imposition (b) required consider degree eligi- all first murder prosecutions ble under imposition sec. for of the death sen- tence, regard without the prosecutor whether actually sought imposition pen- of the death alty?”

Adopting arguments advanced the Public Defender in us,9 three death pending cases now before Tichnell (e) (4) § maintains the pool of cases 414 under from which "similar cases” are to be for purposes pro selected portionality by review was intended the legislature include all in the prosecutor sought cases which death penalty, included, whether it was imposed not. Also to be maintains, Tichnell death-eligible are all other murder Supplemental 9. See consolidated Brief Defender in Public Stebbing Maryland, 103, September Annette Louise v. 35 and State Nos. Term, 1981; 114, Eugene Maryland, Sherman v. 84 and Colvin State of Nos. September Term, 1981; Maryland, Arthur James Calhoun v. State of 129, September Term, Term, September No. No. 1981 and 1982.

461 have, prosecutor cases which the could but did not seek inventory To penalty.10 the death restrict the relevant actually sought, was it is penalty cases which death pool argued, proportionality would skew the review and, truly cases number of similar from it a excluding which, large it urban including in cases conversely, by prose not have been City, would jurisdictions like Baltimore suggests that even Tichnell further capital as offenses. cuted § under punished capitally be murders which cannot are, sentence under review to the death may be similar (e) § therefore, the formulation of within (4). inventory of cases the relevant maintains that State (e) (4) capital only § which includes those

under conducted, whether actually sentencing proceeding was State regard, In this life or death. sentence was review is to the aim of submits that because have sentencing authorities capital ascertain what other offenses, only cases capital murder done with similar (e) (4) § are those under that could be deemed similar before properly imposition of the death which urges The State authority sentencing for determination. murder case as every degree first that it is use improper qualifying no cases which comparison a basis for because present § could under 413 are circumstances aggravating are, therefore, patently capitally and prosecuted not be in which Moreover, argues that cases the State dissimilar. of a despite presence sought, was not not are similar factor under qualifying aggravating authority considered whether sentencing never because the imposed. should be the death sentence pro- containing a statutes or rules Twenty-five states have closely par- to or portionality review identical provision penalty may Capital murder is an offense for which the but 10. (5th 1979); Dictionary imposed. not Black’s Law ed. need Ballentine’s Law be See (3rd 1969). Dictionary 173 ed. 462 (e) (4) §

alleling Maryland 414 these, statute.11 Of three limit pool states their comparative cases for review capital offenses in which the death penalty was actually imposed. Com., See Gall v. 607 (Ky. 1980); S.W.2d 97 King (Miss. State, v. 421 1982); So.2d 1009 Copeland, State v. (1982). S.C., 300 S.E.2d 63 Eight states case law appear to restrict eligible universe of cases for propor tionality review to capital similar prosecutions, murder whether the imposed was life or death. Georgia: See State, 871, Horton v. 249 (1982); Ga. 295 S.E.2d 281 Hill v. State, 277, 250 Ga. (1982); 295 S.E.2d State, 518 Ross v. 233 361, 211 Ga. (1974);12 S.E.2d 356 Trimble, Missouri: State v. 638 (1982); S.W.2d 726 Baker, State v. 636 S.W.2d 912 (1982); Bolder, State v. (1982); 635 S.W.2d 673 State v. McIlvoy, (1982); 629 S.W.2d 333 Mercer, State v. 618 S.W.2d (1981); 1 Coleman, Montana: (1979), State v. 605 P.2d 1000 denied, rehearing 1051; 605 P.2d Moore, Nebraska: State v. 457, 210 (1982); Neb. 316 N.W.2d 33 Williams, State v. 56, Neb. (1979); 287 N.W.2d 18 Nevada: State, Deutscher v. 669, 95 Nev. (1979); 601 P.2d 407 North Carolina: State v. Williams, 47, 308 N.C. (1983); 301 S.E.2d 335 State v. McDougall, 1, 308 N.C. (1983); 301 S.E.2d 308 Oklahoma: (Crim. State, Parks v. 651 P.2d App. 1982); Jones v. (Crim. State, 648 P.2d 1251 App. 1982); Virginia: Clanton v. Com., 223 Va. 286 S.E.2d (1982); Whitley v. Com., 223 Va. (1982); S.E.2d 162 Stamper Com., v. 260, 257 220 Va. (1979); S.E.2d 808 Coppola Com., v. 220 Va. 243, 257 (1979). S.E.2d 797 Washington, by statute, restricts its proportionality review to capital similar cases in which the sentencing authority considered the imposition of the death penalty.13 Tennessee, by rule, statute and appears to 11. The states Alabama, are: Connecticut, Georgia, Idaho, Kentucky, Louisiana, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, Hampshire, Jersey, Mexico, New Carolina, Ohio, New New North Oklahoma, Pennsylvania, Carolina, Dakota, Tennessee, South South Virginia, Washington, Wyoming. 12. The Ross and Horton cases give occasionally some indication that compares court other murder cases in the courts of its review. (2) (b). 13. See Wash. Rev. Code 10.95.130 propor of the interpretation The course.14 follow same and Louisiana Alabama of tionality provisions review 645 State, 396 So.2d See, e.g., v. Beck unclear. is statutes (Ala. 1981) 1979). (La. 300 Martin, 376 So.2d v. and State (e) (4)have no § 414 like having provision Ten other states for of cases universe the relevant articulating case law review.15 proportionality of purposes statute of Delaware’s provision review comparative propor for (4) (e) it provides § 414 from differs whether, light determine to tionality review circumstances, mitigating and aggravating totality to disproportionate was penalty factors, the death and other this arising under cases "in similar imposed penalty 16 White, 395 v. State supplied.) See (Emphasis section.” (Del. 1978).17 A.2d 1082 without

A have statutes number of states jurisdic provision. These proportionality an review express comparative engage in various modes tions nevertheless Florida, Arizona, Illinois review of death sentences. pool of similar proportionality limit appear

Indiana their offenses, whether the sentence capital murder cases Ortiz, 195, Ariz. 639 life death. State v. 131 imposed was 186, P.2d (1981); Richmond, 114 Ariz. 560 P.2d 1020 State v. (Fla. 1981); (1976); 1327 Wainwright, 41 392 So.2d Brown v. (Fla. 1977); State, People v. v. 344 So.2d 1276 McCaskill Brownell, 508, (1980); v. People 79 Ill.2d 404 N.E.2d 181 Glecker, 145, (1980); 82 Ill.2d 411 N.E.2d 849 Williams v. (Ind. State, State, 1982); Judy 416 N.E.2d 759 v. 430 N.E.2d (Ind. 1981). inventory 95 to cases Arkansas restricts its actually imposed. which See Sumlin State, 185, (1981); v. Collins v. 273 Ark. 617 S.W.2d 372 (1977). State, 195, 261 Ark. 548 106 California’s S.W.2d fluid; of each aspects situation is it various more studies it in an death sentence assure (c) § Supreme 14. See Tenn. Ann. Code 39-2-205 Court Rule 12. Massachusetts, Connecticut, Idaho, Hampshire, 15. The states are: New Jersey, Mexico, Dakota, New Wyoming. Ohio, Pennsylvania, New South (Pa. 1982). See, however, Zettlemoyer, Com. v. 454 A.2d 937 (2) 11, (g) § 16. a. See Del. Code Ann. Tit. 4209 from provision different proportionality 17. is also Colorado’s review Maryland’s on the yet interpreted law that state’s but no as cases have 464

even-handed manner and that the crime punished is not severely more than more serious offenses. See People v. Jackson, 603, 28 Cal.3rd 168 Cal. P.2d Rptr. 149 (1980); People Frierson, 25 Rptr. v. Cal.3rd 158 Cal. (1979). 281, 599 Pulley, P.2d 587 See also Harris v. 692 F.2d (9th (1983). 1982), Cir. granted, cert. U.S. Texas procedures and Utah’s review appear to be similar Texas, to those followed in See California. Jurek v. (Tex. State, Roney v. supra; 632 S.W.2d 1982); Cr. State Pierre, 1977). v. (Utah, P.2d 1338

Considering purpose of proportionality review in (e) cases, (4), death sentence language the law jurisdictions in other proportionality with provisions review own, like our expressed by and legal the views commentators,18 we conclude that legislatively the intended inventory of from cases which "similar cases” are be to culled encompasses only degree those murder first cases which the sought § State the death penalty under it whether (e) (4) interpretation § was or not. This of is consistent with the implementing provisions Maryland of Rule 772A requires, which for of purposes proportionality review, that judges trial file detailed reports informational only in such cases. (e) (4) §

The focus of 414 upon is capital cases in which the sentencing authority determined whether to impose a life or sentence; death the subsection aims to upon assure that con- sideration of both the crime and defendant Legal expressed 18. commentators have the view that the death sentence comparatively is if excessive other defendants with similar characteristics generally factually committing receive sentences other than death for sim- jurisdiction. Baldus, Pulaski, ilar offenses in Woodworth and F. same See D. C. G. Kyle, Identifying Comparative Excessive Sentences of (1980). Approach, A Death: authors 33 Stan. Quantitative L. Rev. While the against making large caution the universe of cases so as to render impossible any review, meaningful proportionality they it sug- to conduct gest inventory potentially the case a include sufficient number of imposed. similar murder cases where both life and death sentences were Id. 15; they urge compare, minimum,... at 7 n. circumstances of the death that courts "at a the facts and with the facts and scrutiny case sentence under factually involving circumstances of similar cases similar defendants in options sentencing authority which the of death.” Id. at available to the a included sentence 13. 5 n. present one circumstances aggravating mitigating reached a similar to that will result capital case lead case, capital circumstances thus in another under similar avoiding its ultimate sentence identifying aberrant course, of This, purpose is the constitutional imposition. Gregg and Proffítt as articulated proportionality review Assembly intended and as which we think the General (e) (4). is potentially § 414 case enacting subscribe in No statute, therefore, contemplation of the similar within the punishment. an authorized unless the was (4) (e) Thus, § review of require comparative not does authority sentencing considered in which the capital cases non-capital with cases of the death imposition not; indeed, not be comparison such a would which it did "similar cases.” direction, question parties

At our next considered pool whether of cases available for (e) it, (4), have defined is so limited review under as we federal as to render that violative of the state or section observed, already Supreme constitutions. As we have comparative Proffitt Gregg Court in indicated that required review death sentences the constitution need capital not include cases where life sentence nonappealed imposed, capital homicide cases where a conviction was obtained, not was convicted those which defendant cases Implicit Supreme of a lesser offense. in these Court inventory in the conclusion that to include relevant only penalty sought cases those in does which the death punishment not violate the or cruel and unusual process due provisions of constitution. cases are the federal (5th Lucas, Gray F.2d 1086 generally accord. See v. 677 (1974), 1982); State, Cir. Ross v. 233 Ga. 211 S.E.2d 356 denied, (1976); State, 428 910 Williams v. 430 cert. U.S. dismissed, (1982); (Ind.), 33 appeal N.E.2d 759 103 S. Ct. (Mo. denied, Bolder, 1982), State v. 673 cert. 103 635 S.W.2d (1983); Williams, 56, 287 Ct. v. S. 770 State 205 Neb. N.W.2d (1979), denied, (1980); cert. 449 U.S. 891 State v. (1983); Williams, State v. 308 N.C. 301 S.E.2d 335 , Copeland, S.C. (1982), denied, 300 S.E.2d 63 cert. (1983); Melson, S. Ct. State v. 638 S.W.2d 342 (Tenn. 1982). Nothing Maryland Constitution requires concluding, a different In so result. we do not preclude any defendant whose death is under sentence appellate from presenting argument, review with relevant facts, designated non-capital murder cases are similar to the then scrutiny case under be should taken into account in the of our proportionality exercise review function. parties

Also at argued our direction the briefed and two other questions: inventory Whether the relevant of similar (1) cases is limited to decided those under constitutional (2) death penalty statutes and restricted cases arising Maryland. conclude, I, We as we intimated in Tichnell cited, supra, Md. at 742 cases there that the better rule is comparative analysis to restrict the to cases decided under penalty constitutional death statutes and to those decided under our own law. State

Finally, parties we directed inform us as to the governing factors or criteria review in other jurisdictions having death The question, statutes. the parties suggest, agree, and we does admit of a not defin- itive In response. general, the proportionality review jurisdictions, function is conducted other as it will inbe Maryland, accordance with fundamental constitutional principle avoiding arbitrary or capri- cious imposition by affording similar cases, capital treatment to similar considering both the crime and the defendant.

VI (The Case) Death Sentence In This Having exercised constitutionally our propor- mandated tionality function, review we conclude that the death sen- tence imposed upon Tichnell was neither excessive nor disproportionate penalty imposed to the in similar cases Maryland, considering both crime defendant. police murder of a wilful, premeditated deliberate long has been in of his duties performance the officer while In v. Roberts grievous an crime. especially viewed as 1993, Louisiana, 633, 636, 52 L. Ed. 2d 637 97 S. Ct. 431 U.S. sure, a the that (1977), Supreme said: "To be fact the Court regular his police performing murder victim officer was [in may regarded aggravating an circumstance duties be as an killing Such a constitutes penalty statutes].” death 636, Roberts, for, at society as stated assault on itself affording protection to these special "There is a interest public risk their lives order regularly servants who must guard safety persons property.” the of other a crime previously That Tichnell not been convicted of had favor; of his mitigating violence was a circumstance indeed, by the single mitigating it was factor found the outweigh not the sentencing jury concluded that it did which Manifestly, case. aggravating present two factors sentencing rejected Tichnell’s self-defense version authority — than killing given more version little lukewarm that testimony of Recek. The evidence showed support man, Tichnell armed he was a that he was when mature scene, fully that deputy to the crime expected came to the alarm. From its respond promptly would silent findings, readily apparent sentencing jury it is that Livengood inten- killing Deputy believed that the of purpose and in of to avoid tional furtherance Tichnell’s were fired into apprehension. That several of the fatal shots may jury to the that deputy’s suggested back have while was Tichnell ambushed the officer from behind he apprehending of process Recek. Court, applying principle Supreme Compare cases in which 19. punishment per capital se has declared of constitutional proportionality, Florida, 782, 458 U.S. in certain circumstances. See Enmund v. excessive (death (1982) felony 3368, for L. excessive 73 Ed. 2d 102 S. Ct. attempt life that to take or intend did not take or murder when defendant Georgia, used); 433 U.S. be Coker v. a 97 S. Ct. and excessive taken or that lethal force life be (sentence (1977) disproportionate L. 53 Ed. 2d 982 rape). punishment crime for the dangerous Roberts, Supreme nature of Court noted the 20. In the in the police calling; demonstrated it indicated statistics officer’s duty than police line more doubled killed in the number of last 10 officers years. 431 636 n. 3. U.S. at Maryland’s Since the enactment of death penalty statute 1978, in time, to present forty-eight the capital sentencing proceedings have been conducted in seventeen of the State’s twenty-four courts, involving circuit forty-one different defendants.21 See Appendix A. While some of the cases circumstances, involved multiple aggravating primary the aggravating factor in a number of cases was that the murder was committed in robbery. the course of a Other cases involved murders in rape committed the course of a or sexual offense the first degree; one case involved murder performance committed the an of cases arson. Two involved contract The aggravating murders. circumstance in still other cases was the defendant more committed degree than one arising first murder out the of same inci circumstances, Four cases charged, aggravating dent. as police that a performance officer was murdered while of duties his furtherance escape, attempt of an escape from or evade the officer’s lawful In apprehension. cases, other aggravating circumstance was a hostage victim taken in the course of kidnapping. cases, sentencing Of the proceedings twenty-eight in these imposition sentence, resulted of a by life either deter- of sentencing authority, by mination jury, deadlocked or because of of inability jury agree on a verdict (k). within a Twenty reasonable time. See capital sentencing proceedings, involving fifteen different defen- dants, resulted in the imposition penalty. of Of these, the Court has pro- vacated the death nine ceedings stage because error committed either at the trial proceedings or because of errors committed in the capital sentencing hearing; these were for a cases remanded sentencing hearing. cases, new the remaining Of eleven one was terminated the suicide of the In defendant. another case, judge trial vacated the death sentence and ordered 21. In capital addition sentencing hearings, Timothy Tichnell’s Clyde capital Poole also sentencing hearings. State, had See Poole v. (1981); Md. State, 428 A.2d 434 Poole v. 295 Md. 453 A.2d 1218 (1983). III, eight In to Tichnell hearing. addition sentencing a new appeal. us on before pending cases are now case, in this we review process In of our in each of the report judge’s trial the Rule 772A reviewed five which and have selected sentencing proceedings capital § 414 contemplation within the to be "similar” we deem (e) (4). murder. The charged capital with Recek was

Oscar Recek: circumstances aggravating two upon relied the same State trial, Recek case. At his in Tichnell’s present that were sentencing third did at Tichnell’s essentially as he testified testimony as trial introduced Tichnell’s hearing. He also it confessions, indicated that all of which well as Tichnell’s depu the Recek, and killed Tichnell, who shot and not At the felony of murder. guilty Recek ty.22 jury The found aggravating circum jury found one sentencing hearing the — officer police of a that the murder was stance to exist (d) (1). find § It did not 413 performance the of his duties. in furtherance Recek, that, the murder was committed as to custody or or lawful escape to evade escape attempt of an or (d) (3). one jury § The found officer. 413 police arrest a — not the sole that Recek’s act was mitigating circumstance (6). jury § The (g) death. proximate deputy’s cause of the imposed a life sentence. the defendant, the time of age at The

Harlow Sails: murder of an offense, capital premeditated of was convicted robbery. The of an armed in the course duty police off officer that circumstances: upon aggravating relied three State performance in the officer murder was of a law enforcement an of duties; furtherance that it was committed of his appre- the lawful or evade attempt escape or to from escape officer; murder was and that police of a hension (d) (1), (3), § and robbery. of a committed the course (10). officer, who was not that the evidence indicated The Term, 1980, Special State, 828, September Court of 22. See Recek v. No. Appeals, was clearly that Recek unreported. indicated in the case The evidence degree principal deputy’s murder. not a first uniform, to attempted apprehend and Sails several confeder ates in of robbery, the course an armed during which Sails shot exchange the officer death in gunfire. to an of evi The dence indicated that Sails did not know that the victim was a police jury officer. The found sentencing that all three aggravating upon by circumstances relied had State been By way circumstances, mitigating established. of it found previous that Sails had no record of committing a violence; crime of the murder was committed while Sails’ capacity appreciate criminality of his conduct to conform his conduct to of requirements law was substan tially a impaired as result of incapacity, mental mental disorder, intoxication; emotional disturbance or that was it unlikely that would engage activity Sails in further criminal that would constitute a threat continuing society; specified other mitigating circumstances existed. (8).23 (g) (1), (4), (7), jury imposed The a life sentence. defendant, The 28 at age James Calhoun: the time of crime, premeditated degree was convicted first murder of a County police who had Montgomery responded officer officer, a security alarm a mercantile at establishment. manager store, company with assistant representative burglar alarm entered a room system, Calhoun, accomplice, inside the con- store where and an had pressed gun against cealed Calhoun offi- themselves. cer’s him head and shot to death. Calhoun’s accomplice, Monroe, system rep- Curtis and the alarm shot killed manager. resentative and wounded the assistant Calhoun and taking money Monroe fled after from the jury store. The the aggravating determined that three circumstances (the charged by proved aggravating the had been same State case). were The upon circumstances as relied Sails jury (8), mitigating § found one under (g) circumstance 413 activity mitigating 23. The that other circumstances were Sails’ criminal by gratuitous physical "had not been sadistic characterized and violence killer”; against persons”; style Sails was "not a executioner that sadistic by background upbringing and that his and unstable and "marked was trauma, neglect inattention, adequate emotional guidance and and which lacked supervision contributed conduct.” to his criminal 471 he never i.e., background that was was such that Calhoun’s to with its society into and was unable conform integrated jury a death sentence. and moral values. The norms defendant, time of the age The at the Curtis Monroe: offense, premeditated murder of convicted of the was sentencing court, The as the burglar alarm technician. found that the murder was authority, committed (d) (10). mitigating § circum- robbery. As course of a stances, unlikely it the defendant would court found that a activity that would constitute engage in further criminal (7). § The court also society. (g) continuing threat to (8) § (g) mitigating factors under found as children, was had a wife and two employed, defendant was education, his was to his and that crime attempting further other individuals who greater than that committed by not The court sentenced not the death sentence. did receive imprisonment. Monroe life defendant, at the years The almost 30 old Hughes:

Jackie of crime, premeditated of convicted time was murder armed, was employee, a The who employee. restaurant Hughes deposit to a to make a cash walking was bank when behind, him spun him around approached from shot money. Thereafter, In the Hughes him. took the victim’s encounter, at employee shots course of their fired several died. Hughes Hughes subsequently The escaped. but victim factor sentencing jury aggravating The determined that (murder robbery) in the course of upon relied the State circumstances, found, by way proved; mitigating it convicted of a crime Hughes previously had not been unspecified mitigating and that other factors violence (8). life (g) jury imposed sentence. existed under recognize We exist between Tichnell’s that dissimilarities these comparative case cases, those selected for review. That inventory, are as well as in the not more others similar obviously does not mean that we to Tichnell’s case cannot by § 414 complete comparative review mandated process (e) (4); legislature an so conclude would ascribe operative intention not to an enact effective or statute. only

Of the cases reviewed Calhoun’s in crime resulted a death aggravating sentence. The present circumstances in closely case; case in parallel present those Tichnell’s single mitigating circumstance in Tichnell’s case would appear weightier to be marginally than that found exist in Calhoun’s case. Monroe was not a principal the first degree officer; killing of the police his life sentence was based virtually on the simultaneous murder of robbery. technician the course of the While the life of a police officer precious is no more than of the alarm technician, mitigating Monroe’s circumstances were differ- ent present and, than those arguably, Tichnell’s case more Only substantial. one aggravating circumstance was found case, exist in Recek’s and the mitigating circumstance case; moreover, different than in Tichnell’s sentencing jury’s verdict sheet makes clear that it did not believe that Recek was a first degree principal dep- uty’s death. Hughes, reviewed, the least similar of the cases a episode involved sudden of premeditated of murder an unsuspecting victim an a prior individual without record violence, of a crime of as in Tichnell’s case. The mitigating circumstances found to exist Sails’ case were far weightier cases, than in any those of including the other Tichnell’s. Moreover, although Sails’ of murder the officer was premeditated, he did not know that the victim police was a officer. comparative

Our is, review these similar cases course, designed caprice to avoid in the decision to inflict capital However, punishment. pointed as out Gregg, U.S. at "the isolated a jury mercy decision of to afford does render not unconstitutional death sentences imposed on defendants system who were sentenced under that does not create a substantial risk or caprice.” arbitrariness Maryland’s statute encompasses well-defined and, subclass of degree first murders with one (contract exception murder), the death may only sentence be degree principals. on first We think the Maryland statute meets Gregg test in provisions that its do not create a substantial caprice risk of arbitrariness or in the capital process. sentencing exces- being neither case in Tichnell’s sentence The death (e) must be (4), it § 414 under disproportionate

sive nor affirmed. costs. affirmed, with

Judgment J., Eldridge, concurring: of the and with most

I concur with the result this case opinion. Court’s Vol.), § (1957, Art.

Maryland Repl. Code cases, appeals provides in death sentence sub- relating to (e) that, reviewing sentencing the trial and section after errors, imposition hearing for this Court shall consider the following: of the death sentence and shall determine "(1) Whether the sentence of death was any passion, prejudice, or under the influence factor; arbitrary other

(2) jury’s supports Whether the evidence statutory circum- finding aggravating court’s of a (d); stance under

(3) jury’s or supports Whether the evidence finding aggravating court’s that the circumstances circumstances; outweighed by mitigating are not (4) Whether the of death is excessive or sentence disproportionate penalty imposed to the in similar cases, considering both the crime and the defen- dant.” decided,

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

In this I of the portions with those Court’s opinion m rejecting Tichnell’s claims of error his third sentencing hearing rejecting his constitutional attack upon I agree parts the sentence. also with those opinion holding Court’s that the sentence should not be set (2) (3) (1), above-quoted aside under the paragraphs (e). § 414 Although concurring in the result of the Court’s (4), disagree I paragraph review under with (B)

that portion Judge Murphy’s opinion of Part V of Chief legislatively inventory which concludes "that the intended of cases from which 'similar cases’ are to be culled encom- passes only those first degree murder cases which sought penalty State the death ....” (e) (4) § Assembly, by mandating The General that we determine death whether sentence cases, disproportionate penalty imposed to the in "similar defendant,” considering specifically both the crime and has upon They focused factors to are the two be considered. Nothing language "crime” and the "defendant.” in the of the supports statute the view that our consideration should be prosecutor further limited to those cases in which the has exercised his death The penalty. discretion seek the crime and may defendant in another case be similar to the crime though and defendant in the case under review even attorney decided, prosecuting in the former case for reason, penalty.1 whatever not to seek the death did not seek the the State of cases which Consideration as review to serve our permits proportionality penalty death For a prosecutor. actions of against the aberrant a check the State’s murder case type if in a example, particular do not seek Maryland generally Attorneys throughout county Attorney regu- in one but if the State’s penalty, death in the same penalty death and obtain the larly does seek arbitrary imposition case, be an type of the result would county, would that one we In from penalty. appeals the death in a penalty the death imposition confronted with be imposed. generally is not penalty in which the type of case from the similar cases willing to consider Unless we were sought, was not the death other counties which by proportionality our not be cured this aberration would review. pointed opinion Judge 1. As out in both the Court’s and Davidson’s (e) (4) dissenting opinion, review patterned proportionality after the and, provision Georgia penalty statute, as discussed in

Judge opinion, Supreme Georgia flatly Davidson’s Court of has taken position compare "[w]e the have been 871, 837, do cases as to the death could which sought by State, prosecutor but was not.” Horton 249 Ga. v. 9, (1982), denied, , 880 n. 74 L.Ed.2d 1030 295 S.E.2d 281 cert. U.S. 103 S. Ct. (1983) (emphasis original). in the 96 S.Ct. Georgia, 428 U.S. Gregg In v. Stewart, (1976), opinion of Justice plurality

L.Ed.2d 859 Stevens, out that pointed Powell joined by Justices "guided must be punishment impose capital decision (428 199), appellate at U.S. standards” random against "serves as check review 206). (id. at penalty” the death arbitrary imposition of White, joined by the Chief Justice concurring opinion of with the dealing Rehnquist, Justice Justice alleged standardless argument upon based petitioner’s deciding to seek prosecutorial discretion (id. 225): at penalty, stated argument prosecutors

"Petitioner’s that behave in a deciding standardless fashion in to which cases try as capital unsupported by any felonies is facts. simply

Petitioner prosecutors asserts that since power charge they have the not to capital felonies will exercise power that a standardless fashion.

This is untenable. Absent contrary facts to the it cannot be assumed prosecutors that will be charging by motivated their decision factors other than strength of their case and the likeli- hood that a jury impose would if penalty death * * * it convicts. If really the cases were 'similar’ respects relevant it unlikely prosecutors is cases; would fail prosecute them as I capital am unwilling to assume contrary.” however, In Maryland, demonstrating we have facts now prosecutors throughout not employ State do common in deciding standards penalty. seek the death Unlike Gregg, Justice White in pros- we cannot assume that generally ecutors seek the death cases which are State, 129, Term, similar. In Calhoun v. No. September 1981, 5, September Term, 1982, and No. which was consoli- dated with the instant case for reargument on the matter of proportionality review, decided, and which yet has not been the Public Defender’s Office made a record which convincingly demonstrated that there are no common stan-

dards guiding prosecutors Anyone this State.2 who city newspapers pays attention to Baltimore reads fully aware of the com city broadcasts is Baltimore news adhered concerning capital cases divergent policies pletely in the Baltimore Attorneys Offices different State’s area. metropolitan light

In of the known concerning policies facts Maryland State’s Attorneys, proportionality review limited to those cases in which the sought presents is serious questions constitutional principles under the Georgia, 238, Furman v. 408 U.S. 92 S.Ct. 33 L.Ed.2d (1972), and its progeny. It is a settled principle this State enactment, that a construction anof which does not upon cast doubt constitutionality, the statute’s preferred. E.g., State, 370, 377, (1982); Davis v. 294 Md. 451 A.2d 107 Zitomer, 534, 544-545, State v. (1975), 275 Md. 341 A.2d 789 Church, 1076, 96 cert. denied nom. Gasperich sub v. 423 U.S. S.Ct. (1976); City 47 L.Ed.2d 87 Gaithersburg v. Montgomery County, 505, 510, (1974); 271 Md. 318 A.2d 509 Md. Kuhn, 496, 505, 312 St. Bd. ofBarber Ex. v. 270 Md. A.2d (1973); C., 301, 312, District Land v. Wash. S. S. 266 Md. (1972); 292 A.2d 695 County Realty, Baltimore v. Mo. (1959). 155, 159, Md. 148 A.2d (cid:127) Therefore, I cannot agree with the Court’s construction of (e) § (4), limiting the phrase "similar cases” to encom- pass only those in which prosecuting attorneys sought the penalty. death I believe that Legislature contemplated something flexible, more focusing upon murder cases which the crime itself was similar and the circumstances surrounding the defendant were similar.

Nevertheless, case, opinion Court’s in this after (e) setting (4), § forth its goes construction of 414 on to state as follows: 2. testimony, In that case there was from 18 of the State’s 24 State’s

Attorneys offices, which showed the extreme differences in the standards employed to penalty sought decide whether eligible the death will be in an Judge case. dissenting opinion Davidson’s in the case at bar reviews in some detail the record in the Calhoun case. any "In concluding, preclude so we do not defendant appellate whose death is under review sentence facts, presenting argument, from with relevant designated noncapital murder cases are similar to scrutiny the case then under and should be taken into account the exercise of our review function.”

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

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

Cole, J., concurring:

I judgment concur with the of the Court in this case. I feel compelled however, separately, empha- to write in order to size what I view as an important aspect of the Court’s holding as to proportionality review. mandate,

Under legislative the Court must determine "whether sentence of death is excessive cases, disproportionate penalty imposed to the in similar considering both the crime and the defendant.” Md. Code (e) (4). 27, therefore, § Art. The Court is obliged, compare each death with case other cases to ensure that there is a distinguishing rational basis for the few cases in penalty many which the death from the cases State, 695, which it is not. Tichnell v. 287 Md. 415 A.2d 830 (1980). today

The Court the pool concludes of cases from which "similar cases” are to be culled includes all cases in which the sought, whether or not it was actually imposed. Simultaneously, the Court holds that: any

In so concluding, preclude we do not defen- dant whose death sentence is appellate under review from presenting argument, with relevant appear be Office would 3. Such assistance from the Public Defender’s any attorney representing in this Court a defendant under a available to death sentence. Defender, p. Report Fiscal Year 43. Of The Public Judge expresses preference concurring opinion, for a 4. In his Cole Attorney court-promulgated requiring to maintain a file rule each State’s sought. I have been of those cases where the death could have making authority rule serious doubts that such a rule would be within our under Art. IV, Moreover, proposed Maryland Constitution. See, Rights. might Maryland rule also violate Article 8 of the Declaration (1950) ("there 138, 149, e.g., Lacy, A.2d 26 is no Duvall v. 195 Md. depart- authority judiciary the executive in the to control the members of duties, long plain carrying ment as no violation of out their so Bradford, exist”); Miles v. Governor of Constitution or the law is found to (1864). 170, 183-185, Maryland, 22 Am. Md. Dec. 643 facts, designated non-capital murder cases are scrutiny, should similar to the cases then under propor- in the our be taken into account exercise of function. tionality review Court, fact, limiting its

I take this to mean that the is not penalty death is proportionality review to cases which the expand the sought places but the onus on the defendant to pool of similar cases to include cases which penalty sought. was not my view, pool

In a of cases allowing the Court to review prosecutor which includes where the chose not to seek cases plea agreements or because of penalty, death because reasons, meaningful propor- other tactical is essential to tionality the constitutional review and fundamental to for application responsibility of the statute. Whether the constitutionally marshalling imposes a this data question a for impermissible burden on defendant is day. present, willing another For the I am to assume that prosecutors various will maintain such a data bank which counsel, they public readily will make available to defense private. (e) (4) The 414 the Court to eval- purpose of is to allow uate sentence. meaningfully proportionality of a death (e) (4) §if purpose interpreted This is not served 414 is availability restrict of all relevant to that information inquiry, specifically the cases in which the death sought. Only not a full about the range with of information ultimately potentially individual defendants but not exposed to the death can this Court make sound thereby decision and be assured that it has given quarter disproportionality solely no based on factors race, sex, such as or wealth. racial penalty’s disproportionate impact on been In Furman poor

minorities and the has documented.1 in the Riedel, Discrimination Empirical include: 1. in this area studies Comparison Penalty: the Characteristics Imposition A of the Death Post-Furman, Temp.L.Q. 261 49 Offenders Sentenced Pre-Furman 1924-1968, Texas, (1976); Capital 15 Crime & Punishment Koeninger, Jersey, Rutgers Bedau, in New (1969); Death Sentences Delinq. Punishing Homicide (1964); Eigen O’Malley, Zimring, & L.Rev. 1 Penalty, Perspectives Philadelphia: the Death 43 U.Chi.L.Rev. on (1976). v. Georgia, 408 U.S. 92 S.Ct. L.Ed.2d 346 (1972), Supreme two members of the Court concluded the state statutes at issue were unconstitutional part appeared only race because be basis for offenders would be selecting which sentenced to die. J., (Douglas, concurring); See id. at 249-52 id. at (Marshall, J., concurring). any 364-66 Discrimination in setting, including pros- administrative discrimination in the ecutorial to seek the death penalty, decision is difficult to essential; prove. Adequate information is allowing gather present defendant to and to to this Court information the death penalty sought, about cases which was not an informed decision as to can made. be Attorneys I that the State’s in the sev- Although assume their duties jurisdictions approach eral of this State conscientiously fairly, assumption this is no substitute that being independently for this Court able to assure itself nondiscriminatory they adhere to standards distin- penalty sought in which the death is guishing the few cases Judge many sought. from the cases in which it is not As demonstrates, ably there is a dissenting opinion Davidson’s Baltimore among wide variation the several counties and City penalty of the death respective their administration unlimited Without an prosecutor’s due to the discretion. capital in which the sanction is not evaluation of the cases detect sought, virtually impossible it be for this Court to will any discretion. prosecutorial untoward discrimination Court, Rule, each by require State’s prefer

I would that the those cases where the Attorney to maintain a file of indicating aggravating sought, penalty could have been therein. This information mitigating present factors case. particular defendant in a could then be available to a procedure, today require does not such Although the Court that his sentence it a defendant to demonstrate does allow where the death disproportionate presenting similar cases constitutionally meaningful penalty sought. was not How this to counsel to demonstrate. concession is will be left Davidson, J., dissenting:

The majority Maryland here determines that under Code (e) (4) Vol.), (1957, 27, § Repl. legisla- Art. "the tively inventory intended of cases from which 'similar cases’ are encompasses only degree to be culled those first murder sought cases which the State under Moreover, 413, major- whether it was or not.” ity imposed upon here concludes "that the death sentence Tichnell disproportionate was neither excessive nor to the penalty imposed Maryland, considering in similar cases in both the Consequently, major- crime and the defendant.” ity imposed. agree. affirms the death sentence I do not Accordingly, I respectfully dissent.

I Supreme requires "capital United States Court punishment imposed fairly, be and with reasonable Oklahoma, consistency, Eddings or not at all.” v. 455 U.S. (1982). Indeed, 104, 112, 102 S.Ct. purpose Supreme imposition Court’s standards for of the death measured, goals is to "serve both appli- consistent cation and Eddings, fairness to the accused.” atU.S. Moreover, 102 S.Ct. at 874-75. expressly Court has recognized that the appellate function of review is to achieve goals. Texas, these In Jurek v. 428 U.S. 275, 276, 96 S.Ct. 2950, Supreme the Court stated: (1976), 2958

"By providing prompt judicial jury’s review of the jurisdiction, decision in a court with statewide Texas provided promote has a means to the evenhanded, rational, imposition and consistent added.) (Emphasis death sentences under law.” particularly, More Supreme expressly Court has recognized proportionality designed that review is to effectu- ate the consistent and fair of the death application penalty. Thus, in Gregg Georgia, 153, v. 428 U.S. 96 S.Ct. 2909 (1976), Supreme acknowledged primary Court that the reviewing performing propor- function of a state court in 486 is not penalty the death

tionality review is to assure imposed similar imposed generally unless it has been Supreme There the Court said: throughout cases the state. function, "In sentence-review performing its 'if the death is Georgia has held that court substantially act or it is only rarely imposed for an other acts it imposed line for out of with sentences State, Coley v. 231 set aside as excessive.’ will be Ga., 834, 204 S.E.2d, on another at 616. court at duty it be our under occasion stated that 'we view to that no death sen similarity standard to assure throughout unless in similar cases tence is afñrmed imposed has been the state death 864, State, 861, 233 213 generally....’ Moore v. Ga. (1975). State, 829, Jarrell v. See also S.E.2d (standard S.E.2d, 425, at 270 supra, at throughout the state have juries generally whether State, 236 Ga. penalty’); Smith v. (1976) (found 12, 24, 'a clear S.E.2d behavior).” at Gregg, 428 U.S. pattern’ jury added). 204-05, (emphasis at 2940 96 S.Ct. system In constitu- holding Georgia capital-sentencing face, Supreme on Court concluded: tional its in the for review provision appellate "The as a capital-sentencing system serves Georgia arbitrary imposition of against check the random or particular, In penalty. substantially possibility review eliminates of an to die the action person will be sentenced juries If a comes when jury. aberrrant time in a generally impose do not the death sentence case, review appellate kind of murder certain no defendant convicted procedures assure that a sentence of under circumstances will suffer such at 96 S.Ct. at Gregg, death.” 428 U.S. added). (emphasis

487 (e), is Gregg, § in the wake of 414 enacted Article of the provision review patterned after the Ga. Code Ann. statute. See Georgia penalty death (e) (c) (1982).1 pertinent provides § 17-10-35 Section part: any errors

"In to the addition consideration appeal, the Court of before the Court on properly of the death imposition the Appeals shall consider sentence, the Court regard the sentence. With to determine: shall

"(4) is or of death excessive whether the sentence in similar disproportionate the penalty imposed cases, and the considering defen- both crime added.) (Emphasis dant.” provide

Manifestly, provision of that is purpose consistency imposition death pen- and fairness in imposed is not alty by assuring unless throughout similar cases generally imposed it has been the State. statutory At construction. question

This case involves a appearing meaning issue is of the term "similar cases” (e) (4). statutory §in construction The cardinal rule Legislature. pri- is to actual intent of the ascertain the mary the intention of the source from which to determine statutory If Legislature language of the statute. is reason- language the statute is to be construed ambiguous, is accomplished. ably reference to be purpose with 235, 245-46, State, A.2d Scott v. 297 Md. (c) pertinent part: provides

1. 17-10-35 sentence, regard shall determine: the court "With to "(3) of death sentence excessive Whether cases, con- disproportionate in similar to the added.) (Emphasis sidering both the crime and defendant.”

(1983); Loscomb, 424, 429, 435 764, 767 v. State 291 Md. A.2d (1981); Department Planning of State Mayor v. of (1980). 9, 14, 415 296, 299 Hagerstown, Finally, 288 Md. A.2d strictly a penal statute must be construed in favor of the Canova, 483, 496-97, 365 988, State v. 278 Md. accused. A.2d (1976); State, 609, 617, 244 Gatewood v. Md. 224 A.2d 677, 682 (1966); State, 172, 176, 52 v. Weinecke 188 Md. A.2d (1947). 73, I general shall these rules of apply statutory construction here. (e) (4), §

In enacting the Assembly General considered of scope necessary the the of inventory cases to assure effec- proportionality Thus, tive review. in a letter dated 14 December 1977 from Legislative the Governor’s Chief Offi- cer Assembly, to the General it was respect said to with (e): § 414

"In addition other any properly considerations (E) Court, before requires subsection the Court to make four regarding determinations sentence. Those considerations require court to light view evidence in of each of the court’s or jury’s separate required written decisions. Also is a of comparison penalty imposed in cases which are similar to the murder committed in the instant case to the who defendant committed the crime. statute, Unlike the Georgia not Court is limited to cases which after a certain date. The occurred any cases, Court free to consider similar and it refer (Emphasis must to them its decision.” added.)

This legislative history2 establishes that the General Assembly intended possible inventory that the broadest similar Maryland’s cases be utilized procedure.3 review meaning, may 2. In order determine a statute’s consider the court legislative Scott, 246, history. 1132; statute’s 297 Md. at 465 A.2d at Loscomb, 429, 767; Department Planning, Md. at 435 A.2d at of State 288 Md. at 415 A.2d at 299. efficacy propor- 3. recognized Commentators have also accuracy

tionality procedures upon depends review the thoroughness Assembly’s intent Notwithstanding the General considered, majority chooses similar cases be "any” "only first inventory of similar cases to those restrict sought in which the State murder cases degree not,” and to it was penalty under whether murder cases in which death-eligible exclude those "other have, pen- did not seek the death could but prosecutor however, justifica- no majority, offers affirmative alty.” The this tion for exclusion. view, "death-eligible murder cases which my

In penalty” have, seek death prosecutor but did not could (e) (4). In scope of 414 within the are "similar cases” section, expressly outlined the char- Assembly the General proportionality to account in acteristics be taken into determining whether the There in review. it stated that "both the crime and the disproportionate death is defendant” should be considered. case, dis respect in this With to the crime committed ***4 police killed a

tinguishing characteristics are that Tichnell Moreover, respect in to with attempt officer an evade arrest. case, char distinguishing defendant in this previously not been found acteristic that Tichnell had determining guilty Consequently, of a crime of violence. case, these distin what constitutes a case similar to this taken into account. guishing characteristics must be Such not undoubtedly present, are distinguishing characteristics sought only in cases "in which the State not,” it but also those "other ... whether was death-eligible prosecutor murder in which the could cases have, Under cir penalty.” but did not seek the death these cumstances, inventory. in the cases be included such should "Meaningful”Basis Widener, Hubbard, A for process. Burry, the review Penalty: Practice, Constitutionality, Capital and Justice the Death of Carolina, Baldus, 391, (1982); South 443 Punishment 34 S.C.L.Rev. Kyle, Identifying Comparatively Pulaski, Woodworth, Excessive Sen- (1980-81). Quantitative Approach, 1, of Death: A tences 33 Stan.L.Rev. opinion, "distinguishing dissenting Throughout char term 4. this mitigating aggravating found circumstances acteristic” refers to (1957,1982 Cum.Supp.), Repl.VoI., Art. trier of fact. See Md. Code (d) (g). § 413 & view, my In "death-eligible murder cases which the have, prosecutor could but did not seek the death penalty” must be inventory included of relevant cases in order — goal to achieve the review the consis tent application and fair penalty. Recently, the death Florida, Enmund v. 782, 801, 458 U.S. 102 S.Ct.

(1982), the Supreme Court held that death was a disproportionate penalty felony for a murder in which the defendant, car, get-away kill, the driver of a did not himself attempt kill, or intend that killing place. take In result, reaching plurality this upon legislative relied judgments and sentencing juries, decisions of both of which regarded were as significant objective and reliable indices of contemporary decency. Enmund, standards of 458 U.S. at 788-94, at response dissent,6 3372-75. In to the 102 S.Ct. plurality said:

"The dissent criticizes these statistics on the ground they do not reveal the percentage of charged felony homicides that were as murders or the percentage of cases sought where the State death penalty accomplice guilty felony for an murder. We possible gather doubt whether it is information, rate, such any and at it would be if prosecutors rarely relevant sought pen alty murder, for accomplice felony for it would tend to indicate prosecutors, society’s that who represent crime, in punishing interest pen consider the death alty excessive accomplice felony for murder.” Enmund, 796, 102 at (empha 458 U.S. at S.Ct. 3376 added) (citation omitted). sis conclusion, In plurality the said:

"Although judgments legislatures, juries the of and prosecutors weigh heavily balance, in the it is ultimately for us judge whether the Eighth prevailing opinion 5. The joined by was authored Justice White and Marshall, Blackmun, Justices and Stevens. Justice Brennan filed a con- curring-opinion. 6. Justice dissenting opinion O’Connor filed a in which Chief Justice Burger and Rehnquist joined. Justices Powell and

491 imposition of the death permits Amendment Enmund, 797, . 458 U.S. at 102 S.Ct at . .” penalty. added). (emphasis

3376 agreed Court that Thus, Supreme of the all nine Justices objective an prosecutors of constitutes judgment because the in decency, the fact that standards of contemporary index rarely pen- seek the death prosecutors certain circumstances determining be considered alty is relevant should disproportionate. whether the death is excessive Enmund, Georgia, Court of Supreme Subsequent 871, (1982), 295 State, S.E.2d 281 249 Ga. Horton v. scope appearing term "similar cases” interpreted the Court, Enmund, citing expressly Georgia statute. noted: which the death compare

"We do cases as to sought by prosecutor but was could have been n.9, Horton, at not.” Ga. at 880 295 S.E.2d 289 249 n.9. determined, Georgia

Consequently, Supreme Court of essence, pros in which "death-eligible murder cases have, are penalty” ecutor did not seek death could but inventory proportionality for included in cases utilized acknowledging prosecutorial review thus that the exercise determining pen whether the death discretion is relevant alty disproportionate.7 is excessive or upon the

Maryland’s patterned penalty statute Georgia’s inter Court of Georgia Thus, Supreme statute. upon the United pretation cases” based of the term "similar persuasive Enmund is analysis in States Court’s Supreme conclusion supports interpretation authority.8 That 12, 234, 250, State, 776, 793-94, n. 250 301 S.E.2d 7. In v. Ga. Castell (1983), Georgia in review Supreme its Court of n.12 Mulkey sought. penalty was not See included two cases which State, (1983); State, 242 Ga. v. Reaves v. 250 Ga. S.E.2d (1978). 250 S.E.2d 376 upon patterned of an construing Maryland the statute 8. In statute state, state, judicial including those rendered other of that decisions enactment, authority. Maryland persuasive v. Prince after the George’s County, are James (1980); Joseph 315, 330, 1173, 1181 Md. 418 A.2d St. 371, 732, (1966); Quinn, 376, Hospital Safe 241 216 A.2d 735 Zell v. v. Md. 518, 525, 298, Baltimore, Deposit & Trust of 173 Md. 196 A. 301-02 Co. (1938). 492 Maryland

in "death-eligible murder cases in pros- which have, ecutor but could did not seek the death penalty” must be included in the relevant inventory of cases utilized for proportionality review. time,

For the first this concerning Court has before it data of prosecutorial exercise in penalty discretion death dramatically cases.9 data This demonstrates that the inven tory of relevant for proportionality cases review must — include all death-eligible only murder cases not those in sought which the prosecutor penalty, the death but also in those which he did not. Maryland

This seek the prosecutors data reveals that penalty only death-eligible cases, death 7.8% of death-eligible pen the death whereas in 92.2% of the cases alty sought.10 Consequently, is not this data establishes rarely fact Maryland penalty, seek the death prosecutors relevant, itself, whether the determining that is in and of disproportionate. death More important, purpose review is person assure that a is not sentenced to death unless the imposed generally has been in similar cases throughout Gregg, 205, at State. U.S. 96 S.Ct. at (e) (4), 2940. If purpose effectuated, this is to be under a person background sentenced to death his must have the nature and committed circumstances the crime appellate may judicial 9. An court take notice of the record other cases State, 198, 203, 434 before it. v. v. 552, 555 Dean (1981); Md. A.2d Jeweler (1958). Co., 458, Potomac 463, 66, Electric Power 217 Md. 144 A.2d .Consequently, judicial (No. State, I take notice of the record in Calhoun v. 129, Sept. Term, 5, Term, Sept. 1982), 1981 & No. presently pending before this Court. I, Appendix 129, Term, 10. See Sept. 5, Term, Sept. No. No. State, Appendix Supplemental Calhoun v. Appellants, Brief of Vol. I, Summary at Statistical Relating of Record in v. Calhoun State Cases, Penalty Prosecutorial Percentage Qualifying Discretion Death Capital Proceedings Cases in which Held. cases,” "qualifying The term Appendix used in I to all refers death-eligible including only prosecutor sought cases not those in which the penalty, but also those which he did not. in this persons other imposed on compared to the sentence crime a similar who committed background of State similar seek do not prosecutors That similar circumstances. under death-eligible murder cases of the death in 92.2% penalty in death-eligible are included the all cases shows that unless involving similar number of cases inventory, significant a pro- from crimes would be excluded defendants and similar review. portionality prosecu addition, concerning the exercise of

In the data in in the death that which torial reveals cases discretion County have juries in Garrett penalty sought has been cases, in of the whereas imposed penalty death 50% in City imposed penalty have death juries in Baltimore jurisdictions the that in these two suggests 33%.11This data consistent penalty imposed has in a somewhat death been reveals, however, in The data further manner. exercise of Maryland is a there substantial variation County prosecutors In seek discretion. Garrett prosecutorial cases, death-eligible of penalty in 100% the death only City, they penalty in Baltimore seek whereas prosecutorial data that when 1.8%.12 This further shows County account, juries Garrett discretion is taken into of all penalty have the death 50% imposed cases, City juries in Baltimore have death-eligible whereas ,6%.13 this imposed penalty only Consequently, the death jurisdictions in these the death data demonstrates that two manner. If penalty imposed been an inconsistent has not penalty has been death-eligible cases in which death inventory, person who has sought are excluded from of County is deprived a crime in Garrett committed to other comparison of the treatment accorded realistic Held, Imposed. I, Proceedings Death Capital Appendix 11. See Capital Qualifying I, Percentage Cases in which of Appendix See 12. Proceedings Held. Death was I, Qualifying Percentage Cases in which Appendix 13. See Imposed. persons background similar who committed a similar crime under similar circumstances in City and, Baltimore indeed, throughout the State. my view,

In if death-eligible all cases are not included in inventory, it is impossible conscientiously to determine whether has been generally in similar throughout cases essence, the State. In major- ity’s restriction inventory cases those in which prosecutor sought has impos- makes it sible, case, given in a to determine that the imposition of the death penalty fair is and consistent. Such a result is not consonant with the General Assembly’s intent that the possible broadest inventory of similar cases be utilized in Maryland’s proportionality procedure. review impor- More tant, such interpretation an is not consonant with General Assembly’s purpose assuring consistent and fair application of penalty through the death proportionality review.

Moreover, concerning the of prosecu the data exercise questions torial raises substantial constitutional discretion majority’s proportionality exclusion concerning the from in death-eligible prosecutor review of cases which has relying sought majority, upon not penalty. n.56, at footnotes in 428 U.S. at 204-05 96 S.Ct. Gregg, n.56, Florida, n.16, and 428 U.S. Proffitt v. 96 S.Ct. (1976), has that: 2970 n.16 determined Profñtt]

"Implicit [Gregg in is conclusion inventory of that to in the relevant cases include only penalty sought those in which the death was process or cruel and does not violate the due punishment provisions unusual the federal con- stitution.” Thus, majority recognizes Gregg itself and Profñtt that n that it is Supreme explicitly did not hold Court inventory of cases those

constitutional to restrict sought. penalty which the only Proffitt, considered Supreme In Court Gregg constitutionality Georgia of the and Florida death the facial by plurality a These cases were decided statutes. concurring opinion Gregg, In Justice White Court.14 a need not prosecutorial that discretion articulated view There Jus be taken into account in review. tice White said: by made decisions argues also "Petitioner — plea negotiating prosecutor either or in capital murder

some lesser offense than — are declining charge capital murder simply inexorably in the result and will standardless of the imposition wanton freakish I address in Furman. by judgment condemned no the cases which point separately because this escape the view charged capital offense not and are considered Georgia Court Supreme sentence is determining particular it whether disproportionate. excessive argument prosecutors behave

"Petitioner’s deciding which cases in a standardless fashion any by facts. try capital unsupported felonies is as prosecutors that since simply Petitioner asserts they charge capital felonies power not to have fashion. power will a standardless exercise that contrary, it to the This is Absent facts untenable. be that will prosecutors

cannot be assumed by factors charging their decision motivated in case and the likeli- strength other than of their by joined were Gregg in both and Proffttt opinions 14. prevailing Burger Stewart, Powell, and Justices Justice and Stevens. Chief Justices judgments of opinion, Rehnquist, separate concurred in a White and judgments of separately in the concurred the Court. Justice Blackmun separately dissented. and Marshall each Court. Justices Brennan jury hood that impose a would the death if it convicts. prosecutors incompetent Unless are their judgments, by they the standards which decide charge capital felony whether to a will be the by jury same as those which will decide the questions guilt sentence. Thus defendants will escape penalty through prosecutorial charging only decisions because the offense is not serious; sufficiently proof because the is insuffi- ciently strong. system This does not cause the to be any the jury’s standardless more than decision to impose imprisonment life on a defendant whose insufficiently crime is deemed serious or its decision acquit probably guilty someone who is but whose guilt beyond is not established a reasonable doubt. Thus the prosecutor’s charging are decisions unlikely to have removed from the sample of cases Supreme considered the Georgia any Court ’ truly which are If ’similar. really cases were ’similar’ unlikely it is respects, relevant that prosecutors prosecute would fail to capital them as cases; and I am unwilling contrary.” to assume the (White Gregg, 224-25, 428 U.S. at 96 S.Ct. at 2949 added). J., concurring) (emphasis Manifestly, Justice premised White’s view is upon the assumption, facts, unsupported by there is no signifi cant variation in the prosecutorial exercise of discretion and consequently prosecutorial impact discretion has no upon proportionality review. The data before this Court for provides first time concerning facts the exercise of pros ecutorial discretion. This data demonstrates substantial variation, ranging 100%, from 1.8% percentage in the cases in which the sought, depending upon identity prosecutor making the determination.15 Equally important, this data shows that there is substan- Capital I, Qualifying Appendix Percentage 15. Cases in which See Proceedings Held. in prosecutors tial in employed variation the standards In deciding penalty.16 in which to seek the death six cases discretion; counties, prosecutors virtually no the exercise single a penalty the death whenever prosecutors these seek present mitigating is and circum aggravating circumstance other not into account. In six counties stances are taken considerable discretion. City, prosecutors exercise Baltimore weigh aggravating the circumstances prosecutors Such determining against mitigating the circumstances many are other penalty. to seek There whether the death In employed by prosecutors. in the variations standards strength case is evaluated. jurisdictions the some the question jury impose whether a would Sometimes City In is Baltimore the death penalty death considered. sought a likelihood that penalty is if there is substantial County, impose Montgomery In jury would death. In possibility. a

penalty sought is if there is reasonable very County, sought it is penalty Charles the death unless impose penalty. In two unlikely jury will counties, prosecutors public respeGt take with sentiment others, account, they do the case into whereas seven be counties, relationship In five take the prosecutors not. account, tween the accused the victim into whereas they county, prosecutor In one con three others do not. upon prosecuting penalty siders the burden of a death case courts, Attorney’s office and the whereas seven State’s counties, county A in one seeks they prosecutor other do not. plea bargain, a penalty the death as a device to obtain prosecutors county engage in no in such whereas other practice. county, a In single prosecutor seeks the death felony only aggravating murder cases when underlying circumstances are from the separate distinct felony, prosecutor any county whereas no other has such Finally, a policy. data before Court shows that when this question six prosecutors hypothetical were asked the they whether in a case would seek murder, felony involving fourteen-year-old charged with Term, Term, Sept. 16. Sept. See No. 1981 and Calhoun No. State, Extract, v. Joint Record Vol. IV. that they responded would and three responded that three they would not.

Manifestly, assumption Justice White’s that the stan- employed by dards prosecutors Georgia will be consistent that really "if the cases were 'similar’ in relevant unlikely respects, prosecutors it is that prose- would fail to cute them capital may as cases” not be See well-founded. (White, Gregg, J., 428 U.S. at at 96 S.Ct. con- curring). circumstances, Under these impact upon Supreme Court of data similar to that before this Court is, nonetheless, cannot It be assessed. apparent that the exis- question tence such data raises the whether the relevant inventory of cases must include those in which the death penalty sought proportionality was not in order for review to be constitutional. Enmund,

Subsequent Gregg, to all nine Justices of Supreme agreed rarely Court that the prosecutors fact that seek the penalty death is relevant and should be considered ip determining whether penalty death is excessive disproportionate. did question Enmund not involve the the scope inventory necessary relevant of cases for Nonetheless, proportionality constitutional sug- review. it gests that of data the existence similar to that before this Court, indicating prosecutors rarely death pen- seek the alty, and significant that there is variation the standards employed and percentage of cases in which the death penalty sought, question is raises the whether the relevant inventory of cases must include those in which the death sought was not in order for review Indeed, be subsequent Enmund, constitutional. Supreme Georgia interpreted Court of scope of the term "similar including cases” as those which the death pen- alty could sought by prosecutor have been but not. Horton, n.9, 249 Ga. at at 289 S.E.2d n.9. circumstances,

Under these it majority’s is clear that the (e) (4), construction of 414 restricting the relevant inven- tory cases to those which prosecutor sought has excluding death-eligible those cases prosecutor not, which the has raises serious doubts as to its constitutionality. Such a construction should be avoided.17 not that "we do majority’s

I cognizant of the statement am under any whose death sentence preclude defendant with relevant presenting argument, review appellate from similar non-capital murder cases are facts, designated into scrutiny be and should taken case then under review our proportionality in the of account exercise this however, the members of I do not with agree, function.” in that majority’s result this case who concur the Court with (e) (4) aca- of 414 "becomes majority’s the construction light in of consequence,” practical and of little or no demic murder cases expressed willingness the "to consider Court’s which penalty, the death which the State did not seek defendant.” by to the attention the brought are Court’s inventory essence, determining after the relevant In that has penalty death death-eligible cases which the excludes right defendant the sought, majority not affords the been nonetheless be taken argue to that certain such cases should right not a does Affording into account. a defendant such proportionality eliminate the inherent fatal defect by majority. fact that procedure prescribed review something should right argue defendant to afforded it be in the not mean that inventory included relevant does Thus, majority permits death-eligible will although be. to be penalty sought in which the has not been cases death account, require taken into it does not the consideration death-eligible Consequently, all the relevant inven- cases. tory in which the death of cases remains restricted to those all penalty sought has been and continues exclude not death-eligible penalty in which the death has been cases view, short, does sought. my majority’s In statement right argue nothing more than afford defendant statute, giving 17. A its construction of a rise to doubts as to constitutionality, State, 370, 377, Md. 451 should be avoided. Davis v. 294 107, 111 (1982); Inc., County Realty, A.2d 155, 159, Md. Baltimore v. Missouri 219 116, 127, 424, (1959); Clark, 54 148 A.2d 189 Md. Barrett v. (1947). A.2d inventory today cases from the certain excluded should be included and considered tomorrow.

Additionally, if death-eligible designated even cases penalty the defendant which the death was not sought account, were to be taken into the fatal defect inherent in the by the procedure prescribed majority review circumstances, would not be eliminated. Under such aas matter, practical there still be all would no assurance that death-eligible similar cases which the has sought not be in determining would considered been imposition whether is fair and con- sistent. Only cases of which defendant has become aware would be considered. view, my

In it responsibility is the of this Court to assure death-eligible that all in which death penalty cases has sought, review, not in proportionality been be utilized be inventory. Judge Eldridge, included m the Like the Supreme recognized difficulty Court has the enormous associated gathering concerning prosecutorial data with exercise Enmund, discretion. U.S. at See S.Ct. at 3376. The responsibility to accumulate such data should be not true, foisted the upon particularly defendant. This is in represented by case such as this in which the is defendant necessarily retained not counsel who does have available even the limited statistical data available to the Public Defender. short,

In majority the has in propor- determined tionality all cases in the review similar which death sought has been are It respon- relevant. has assumed the sibility, through rule-making powers, its to an develop all inventory of in death-eligible pen- cases which death alty sought may has been from which relevant similar cases be majority belatedly culled. The then indicates that similar death-eligible cases which the death was not sought may Nevertheless, be explanation, without relévant. any attempt adopt sug- without to a rule such as that gested by Cole, Judge any rule, or other the Court refuses develop inventory an death-eligible of all cases which the relevant sim- from which sought penalty has not been death Cole, willing I am not Judge may be culled. Unlike ilar cases pros- rule "various of a Court that in the absence to assume readily they will bank which a data ecutors will maintain... counsel, Under private.” or public available to defense make circumstances, justification no is there present Court’s arbitrarily to shift this majority whatsoever for him a impose upon to the defendant responsibility perform. difficult, impossible, if not is task which (e) (4), inventory of sum, view, my In under not must include review proportionality utilized for cases prosecutor has in which only death-eligible those cases not, it but whether was sought penalty, did not prosecutor death-eligible cases which all those supported is a construction penalty. seek the death Such (e) (4), § 414 consonant with history of legislative inventory of possible legislative intent the broadest Maryland’s proportionality similar cases be utilized questions, serious constitutional procedure, review avoids unjustified of an arbitrary imposition prevents inter- such an upon important, the defendant. Most burden review purpose pretation effectuates — pen- application fair of the death to assure consistent and — and, therefore, I alty agree is favorable to the accused. in State v. Judge dissenting opinion with Seiler in a who (Mo. 1981) (Seiler, J., dissenting) Mercer, 618 S.W.2d stated:

"By capital is meant similar 'similar cases’ murders, only limited to those where both not jury to the imprisonment and life were submitted way whichever appeal, and then affirmed on is the The evil deed punishment. case went on that, it and as well accompanied murder and what defendant, must be looked at as the is what pun- received in comparing what one defendant charge with what capital under a murder ishment fact.. . that the state waived another received. The defendant’s] capital [a murder the death case . . . does not mean that ignore we can his case idea, in making comparison. accept our Once we must, as we the death penalty cannot be random, arbitrarily inconsistently, inflicted at or or then necessarily we must take into consideration all capital (Emphasis murders we know about.” added.)

II (e) (4) agreed majority Even if I with the that under inventory the relevant of similar cases is restricted to "first degree sought murder cases in which the State penalty... not,” I imposed agree whether it was would not majority’s with the conclusion "that the death sentence imposed upon Tichnell was neither excessive nor disproportionate to the penalty imposed similar cases Maryland, considering both the crime and the defendant.” Court engaged in which this has

This is the first case proportionality review order to determine whether a is, death penalty disproportionate. is excessive or It therefore, important process be defined. Amendment Eighth concept merely involves contemporary more than a measure of stan- decency. requires magnitude dards of It also that the of the punishment only related imposed degree be not to the victim, harm inflicted degree on the but also to the Enmund, culpability, 814, defendant’s moral at U.S. 822- (O’Connor, J., 102 S.Ct. at 3390-91 dissent- ing). Assembly The General has the responsibility determining whether is excessive or disproportionate upon aggravating this Court. The mitigating circumstances established the General Assembly represent legislative judgment that each of those culpability characteristics affects the moral persons attributable to who commit crimes. In making our legislatively comparison, mandated this Court must take each of distinguishing the relevant characteristics into Court, Assembly directs this further The General account. characteristics distinguishing the all of comparing after defendant cases, whether the to determine present in similar a deter- penalty. Such the death given a case warrants applicable of Court, utilizing all requires mination this to culpability, respect to moral legislative judgments with is culpability a moral whether defendant’s decide essence those sen- attributable to culpability to the moral closer imprisonment. to life to those tenced death or sentenced degree of moral Manifestly, comparison between case, in given given to a defendant attributable culpability defendants similar to other similar and that attributable proportionality of review. cases is the core is penalty excessive considering In whether a death necessary whether it to determine disproportionate, is generally imposed is penalty similar the death cases Thus, necessary to that the it is show throughout State. defendant is culpability of moral attributable degree as to others similar great at least as that attributable questionable to death. If it is whether cases sentenced great least as that moral is at as culpability defendant’s death, proportionality the focus of others sentenced to a determination of whether necessarily review shifts from generally imposed similar has been cases moral State, the defendant’s throughout whether in similar circum- so far exceeds that of others culpability imposition life that the imprisonment stances sentenced to justified. of the death Thus, review demands the process proportionality —

striking balances of the most delicate balances about it is persons may Consequently, differ. which reasonable caution and the necessary to with the utmost proceed care, analysis, at is the delicate greatest for in the final stake being. death of a human life and balance between pro- review difficulty inherent in the One sim- cess, majority, is the selection of acknowledged by inventory majority from the relevant cases. ilar cases case exist between Tichnell’s recognizes "that dissimilarities and those selected for comparative review.” It laments that cases, "these as well as others in the inventory, are not more similar to Tichnell’s case.” Notwithstanding these inadequacies inventory, in the majority feels compelled to "complete the comparative process review mandated (e) (4).” § 414 doing, In so it has determined that there are only five similar cases in the inventory. a result, As majority has failed to take into account a number of similar cases considering both the crime and the defendant. my In view, there are ten cases in inventory having distin guishing characteristics similar to those in this case that here,18 should be considered of three which are by considered majority.19 (e) (4) In order to determine whether under imposition of is excessive or necessary disproportionate, compare it to similar cases considering both crime and respect the defendant. With case, to the of circumstances the crime in this the record a.m., approximately shows that at and a con- 5:25 Tichnell federate into store purpose stealing guns. broke a for the The open nobody present. store was not then was departure Tichnell’s from the interrupted scene was a deputy sheriff whom he shot and killed. When the police sheriff, lying discovered the deputy he was face down near the store. He had been shot seven times and was dead. Of the Harris, 75400, 18. See State v. Criminal Case No. Circuit Court for County, 9-6-83; Monroe, 26242, Baltimore filed State v. Criminal No. Cir- Montgomery County, 12-9-82; Johnson, cuit Court for filed State v. CT 82-377, Green, 7-12-82; County, County, 12-1-82; George’s Circuit Court for Prince filed State v. 18108220-22, Ind. City, No. Criminal Court for Baltimore filed White, 75226, v. State Criminal No. Circuit Court for Baltimore 5-19-82; 25917, Hughes, filed State v. Criminal No. Circuit Court Montgomery County, 4-13-82; Calhoun, for filed v. State Criminal No. 26250, Colvin, 9-30-81; Montgomery 12-21-81; County, Circuit Court for filed State v. 25,349, Criminal County, No. Circuit Court for Anne Arundel filed Stebbing, State v. Criminal Case No. Circuit Court for County, 6-2-81; Porter, Harford 22,551, filed State v. Criminal No. Circuit County, Court for Anne Arundel filed 1-2-81. indicated, expressly throughout dissenting opinion Unless otherwise this inventory Reports Judges, citations cases in the refer to the of Trial filed Appendix majority opinion. in this A to Court. See Monroe, Calhoun, Hughes. 19. See — in back and one shots, fatal one the lower seven two were in back the head. case, dis in this to the crime committed respect

With police Tichnell killed are that tinguishing characteristics Moreover, respect with attempt in an to evade arrest. officer case, that the dis in the record shows the defendant this previ had not Tichnell is that tinguishing characteristic ously guilty of a crime of violence.20 been found Consequently, determining a case sim what constitutes case, distinguishing must be ilar to this these characteristics taken into account. only case which has one majority

The considered Calhoun, No. Criminal imposed, was The County, 12-21-81. Montgomery filed Circuit Court for case are distinguishing characteristics comparative defendant was killed while the officer was police Calhoun, how judgment attempting evade arrest. important, ever, appeal.21 on More pending is presently during killed Tichnell, police officer was unlike which a Calhoun, breaking, police a storehouse course dis robbery. This during of a officer killed the course quality in difference significant there is a tinction is because breaking. and storehouse robbery the of between crimes (1) 27, mitigating (g) § that a circumstance 20. Art. 413 establishes as guilty previously of a crime of violence. the This has not been found defendant part: provides pertinent in section abduction, paragraph, "As arson, escape, manslaughter, in this 'crime of violence’ means used manslaughter, except involuntary kidnapping, murder, mayhem, robbery, rape offense or or sexual degree, attempt any commit of these in first or or an second felony offenses, handgun of a or the use a in the commission of another crime of violence.” phrase Throughout defined dissenting opinion, of is this "crime violence” (1). (g) is 413 as it previously additionally been that Tichnell had not record shows Moreover, guilty any that Tichnell found of other crime. the record shows had served child, military married, dependent for in the had been had a years, approximately employed mill several one and had been at a steel until year Although were none of these characteristics before crime. Tichnell, mitigating found some of them were found be circumstances inventory. mitigating See to Monroe. case in the be circumstances another during appeal is that grounds pending 21. of Calhoun’s One into impermissible jury considerations sentencing proceeding look penalty. determining impose death account in whether 506 involves of taking property from person,

Robbery whereas storehouse breaking taking involves the property from upon a place. difference, Based this the General Assem bly has determined that a killing during the course of a (d) robbery aggravating circumstance, § constitutes an 413 (10), justifies the imposition of the death penalty, killing during whereas a breaking course a storehouse Thus, does Assembly not. expressed General its leg has judgment islative degree moral culpability attributable to a person during who kills the course of a robbery person exceeds that attributable to a who kills during the of a Moreover, course storehouse breaking. although "background”22 Calhoun’s was found to be a circumstance, mitigating Tichnell, unlike he repeatedly had case, the instant this Court upheld It challenged noted that until should be has not any penalty of the nine death consecutive cases decided 27, State, 235, §§ since the enactment of Art. 413-415. See Scott v. Md. 297 (1983); State, (1983); 191, 465 A.2d 1126 ris v. Foster v. Md. 297 464 A.2d 986 Har State, 329, (1983); State, 167, Md. A.2d v. 295 455 979 Poole Md. 295 State, (1983); Huffington 1, (1982); 453 295 452 A.2d v. Md. A.2d 1211 1218 State, 405, 439 State, (1982); Johnson v. 292 Md. A.2d 542 Poole v. 290 Md. 114, 428 43, 427 (1981); State, (1981); A.2d 434 Tichnell v. 290 Md. A.2d 991 (1980). State, 695, Tichnell 287 830 v. Md. 415 A.2d Similarly, Supreme upheld only the United States Court one has chal lenged penalty Gregg. in fourteen of the fifteen cases decided since Enmund, n.23, 102 (1982) (O’Connor, See 458 U.S. at 811 S.Ct. at 3384 n.23 J., dissenting). upheld Enmund, The death was not 458 U.S. at 782, 3368; Eddings Oklahoma, 104, 102 at S.Ct. v. 455 U.S. 102 S.Ct. 869 (1982); Smith, 454, 101 (1981); Bullington Estelle v. 451 U.S. S.Ct. 1866 v. Missouri, 430, 101 (1981); Texas, 38, 451 U.S. S.Ct. 1852 v. Adams 448 U.S. (1980); v. Alabama, 625, 100 S.Ct. 2521 v. Beck U.S. S.Ct. 2382 (1980); (1980) Godfrey 420, Georgia, (plurality 446 U.S. 100 S.Ct. 1759 (1979) opinion); Georgia, 95, curiam); v. (per Green U.S. 99 S.Ct. 2150 (1978) Ohio, 637, (plurality opinion); Bell v. 438 U.S. 98 S.Ct. 2977 Lockett Ohio, (1978) 586, opinion); v. 438 U.S. 433 U.S. 98 S.Ct. 2954 Coker v. Roberts v. (plurality (1977) Georgia, 584, (plurality opinion); 97 S.Ct. 2861 (1977) Louisiana, Florida, 633, (per curiam); 431 U.S. 97 S.Ct. 1993 Gardner v. (1977) 349, (plurality opinion); 430 U.S. 97 S.Ct. 1197 Davis v. (1977) curiam). Georgia, (per 429 U.S. 97 S.Ct. 399 The death (1977). upheld Florida, in Dobbert v. 432 U.S. S.Ct. jury 22. In Calhoun the found: mitigating "that a substantial factor the defendant’s never background, which has been such that he inte- has been grated society. Therefore, been into he has and is unable to conform with its norms moral values.” is This distinction of violence.23 of crimes guilty been found Assembly frequently has the General too because important attributable culpability moral degree of that the asserted first-time offender to a that attributable a recidivist exceeds more crime warrants commits a recidivist who and that a commits first-time offender who than a punishment severe See, e.g., Md. circumstances. under similar same crime Art. Cum.Supp.), & 1983 (1957, Repl.Vol., Code public In this State’s light of 293, 366, and 643B.24 §§ moral degree of only that I conclude policy, can Calhoun’s of person to a attributable culpability guilty of crimes found been repeatedly has background, who during course officer police who kills of violence and kills a offender who a first-time that of robbery, exceeds breaking. of a storehouse during course police officer in Calhoun penalty of the death imposition Manifestly, the generally is not establish does Tichnell’s. as in cases such State throughout further. necessary to look Consequently, it The majority itself recognizes that the Calhoun case is justify insufficient to imposition

this case. Consequently, majority considers four addi- tional cases its view comparative have distin- guishing In characteristics. each of these cases life imprisonment imposed. result, As a focus 1971; robbery robbery 23. Calhoun was armed armed convicted of 1972; robbery 1978; armed two robberies in 1979. armed Tichnell, Calhoun, Additionally, had never the record shows that unlike military dependent served had no children. (a), involving respect 24. Section 293 with crimes controlled certain dangerous substances, provides: "Any person is, any subheading if convicted of offense under this subsequent offense, by punishable the offense is a second or a term authorized, imprisonment by twice that otherwise the fine twice added.) authorized, (Emphasis otherwise both.” respect provides punishment Section 366 to crimes for provides for enhanced for recidivists with relating punishment provides lotteries. Section enhanced respect relating 643B recidivists with to certain crimes to theft. Section punishment respect for enhanced for to crimes of recidivists with violence. majority’s proportionality necessarily review shifts from a determination of similar penalty whether cases the death generally throughout State, has been culpability whether Tichnell’s moral so far that exceeds of others in similar imprison- circumstances sentenced to life ment imposition that the justified. is

Of the four life imprisonment cases considered majority, are comparative two cases in which the distin guishing police characteristic is that a officer killed. In was my view, neither of be these cases should considered here. In Sails, 82-352, CT County, Circuit Court for Prince George’s 5-24-83, filed during robbery defendant the course of a repeatedly ultimately a police shot killed officer an effort to avoid arrest. A psychiatrist defense testified that Sails had an personality antisocial and that at the time of the murder he lacked capacity substantial to conform his requirements conduct to the of law. The defendant testified that a robbery short time before the he taken had "speedball,” cocaine, a mixture of heroin and and also had smoked marijuana. mitigating some of circumstances One found was that at the of time the murder the defendant’s capacity was In substantially impaired. my view, a defen dant capacity whose was substantially impaired at the time significantly commission the crime is so different from a capacity defendant whose impaired, was not cases which such comparable. dissimilarities are not exist reason, For this the Sails case is not similar to the Tichnell case and should not be considered here.25

In Recek, Trial, 5254 Criminal Circuit Court for Washington County, 3-24-80, filed case in remaining comparative which the distinguishing characteristic is that police killed, defendant, officer was who was Tichnell’s accomplice, was sentenced to life imprisonment. There was 25. considered, Even if the Sails case were I would find while culpability greater Tichnell’s Sails, moral ques- than that of it is tionable that the culpability whether Tichnell’s moral so far that of exceeds Sails imposition justified. of the death show, however, principal evidence to that Recek was not a officer, degree killing police the first jury’s verdict sheet makes clear that it did not believe that cir- principal degree. Recek was a the first Under these cumstances, subject penalty. Recek was not to the death See (e) (1). Thus, § 413 the Recek not similar to the case is case and should not be considered here. Tichnell any event, In it majority recognizes the itself that is not possible justify imposition to the of the death on the upon sole of the three cases which it relies in which the basis a comparative distinguishing police characteristic is that Accordingly, majority officer was killed. the seeks other distinguishing have char comparative cases that other majority’s twenty-two acteristics. There are cases the char inventory comparative distinguishing which the that a other than a officer was person police acteristic is I during robbery.26 agree killed the course of a with the majority eight that of those cases should not be considered cases, the respect remaining here.27 With to fourteen majority, only that two are explanation, without determines cases, In similar to this case. both of these the defendants were imprisonment. sentenced to life propor- engaged in this Court has the first case which 26. This is available for com-

tionality limited number of cases review. In view of the killed, majority agree that parison police I with in which a officer was compar- necessary compare to cases which it ative officer was killed to the Tichnell case is police a distinguishing other than characteristic is that an individual robbery. possible that at some during It is the course of a distinguishing inventory char- of cases which future time the larger. unfortunately be police will officer was killed acteristic is that Thus, may appropriately comparisons as Tiehnell’s may to cases such come a time when there distinguishing char- be limited to cases which police officer was killed. acteristic is that a cases, eight judgment court was of the trial In three 27. State, 191, (1983); Huffington reversed. Foster v. 297 Md. 464 A.2d 986 v. State, 1, 452 (1982); State, 114, 428 Md. A.2d 295 Md. A.2d 1211 Poole v. 290 (1981). others, In three was vacated and the case was State, 235, 465 sentencing proceeding. remanded for a new Scott v. 297 Md. State, (1983); (1983); 329, 455 A.2d 1126 Harris v. 295 Md. A.2d 979 Poole v. (1983). 167, 453 A.2d State, 295 Md. One case remanded to the trial court and dismiss the with directions to vacate the conviction and sentence (1982). State, 625, In A.2d 929 Md. indictment. Thomas v. remaining case, court and a new the trial the death sentence was vacated Johnson, 8796, No. sentencing proceeding pending. Criminal is State v. County, 5-5-83. Circuit Court for Harford filed Monroe, In Criminal No. Circuit Court for 12-9-82, Montgomery County, defendant, filed an accom plice Calhoun’s, shot killed an alarm technician robbery of a in an during apprehen course effort to avoid Tichnell, however, sion. Unlike Monroe had previously been guilty found Nevertheless, of a crime of violence.28 the trial court found mitigating as a circumstance it was unlikely engage that Monroe would in further criminal activity. mitigating Additional found circumstances were previously Monroe had employed, been had two child ren,29 and his since incarceration had made efforts to fur ther his In my view, education. degree whether the of moral culpability Tichnell, attributable a first-time offender officer, who killed a police exceeds the degree moral Monroe, culpability attributable recidivist who killed a person police officer, other than a questionable and, therefore, justify imposition insufficient of the death penalty. Hughes,

In Court Criminal No. Circuit for Montgomery County, 4-13-82, filed killed a defendant person police other a course during than officer the of a robbery. The guilty defendant had not been found previously of a crime of mitigating violence "other” circumstances circumstances, however, were found. mitigating The "other” by not specified jury. Although comparative were the the distinguishing person characteristic that a other than a police robbery officer killed course of a was during was the present, the crime committed was a somewhat different quality from by that committed Tichnell. Tichnell set out to guns some from a store a time when no one would steal at contrast, by be In present. Hughes, recognized major- the reviewed,” ity being as "the least similar of cases previously robbery. 28. Monroe was convicted of distinguishing 29. present These two characteristics were in Tichnell’s but mitigating case were not found to be circumstances. gun and rob the daylight defendant set out broad down way manager deposit of a restaurant who was on his $25,000. Accordingly, it receipts approximately weekend’s culpability questionable degree is whether of moral degree of moral attributable to Tichnell exceeds Hughes. culpability attributable to by the Hughes, upon

Monroe and the two cases relied officer was majority person police in which a other than a during robbery, justify impo- killed the course of a do not it is penalty Consequently, sition of the in this case. necessary to look further. cases majority’s inventory contains twelve additional distinguishing characteristic is comparative which the person police during

that a other than a officer was killed cases, arbitrarily In robbery. course of a four of these majority, pen- the death excluded from consideration alty imposed, imprisonment while life was eight. Harris,

In Circuit Court for Criminal Case No. 9-6-83, County, during Baltimore the course of a filed store, victim, robbery in a the defendant shot the the sole employee present, previously six times. The defendant had view, guilty my been found of a crime of violence.30 In it is questionable degree culpability whether of moral during attributable to a first-time offender who the course of breaking police great storehouse kills a officer as as that is during attributable to a recidivist who the course of robbery person police kills a other than a officer. Under circumstances, imposition these of the death not, itself, Harris does establish generally imposed throughout is in cases State Consequently, necessary such as Tichnell’s. it to look fur ther. Colvin,

In 25,349, Criminal No. Circuit Court for Anne 9-30-81, Arundel County, filed during the defendant robbery course of a stabbed the victim in twenty-eight times robbery 30. Harris was convicted of in 1977.

her throat. The previously defendant had been guilfy found of a crime of my view, violence.31 In culpability moral a recidivist during who the course robbery of a commits a murder in a brutal and heinous manner exceeds that of a first-time offender during who the course of a storehouse breaking police kills a officer when unexpectedly threatened with apprehension. Manifestly, imposition of the death penalty in Colvin does not establish that the is generally imposed throughout the State in cases such as Tichnell’s.

In Stebbing, Criminal Case No. Circuit Court for County, 6-2-81, Harford filed strangled the defendant woman who at the time being raped by was the defendant’s husband and thereafter stole the personal poss woman’s essions.32 The following day the defendant and her husband dumped partially body the victim’s nude into a sewer. The defendant previously had not guilty been found of a crime of violence.33 In light of the brutal and heinous in manner committed, which the crime was imposition of the death penalty in Stebbing does not establish that the death pen alty generally imposed in cases such as Tichnell’s. White,

In Criminal No. Circuit Court for Baltimore County, 5-19-82, filed the defendant shot the victim who at the time riding moped the defendant was attempting to previously steal. The defendant had not been guilty found of a crime of violence. An mitigating additional robbery 31. deadly weapon Colvin was convicted of with a in 1972. additionally The record burglaries shows that Colvin was convicted of six 1960; burglary 1962; 1964; in larceny 1964; in storehouse burglary breaking 1969; 1973; larceny 1973; two assaults burglary Additionally, 1981. the record shows that Colvin had not served in the military. recognize Stebbing robbery 32. I rape. that in was incidental to the Nevertheless, review, in this first exercise of caution requires Stebbing comparative be included because it contains the distinguishing killed person police characteristic that a other than a officer was during robbery. the course of a additionally Stebbing larceny 33. The record shows that was convicted of in 1979. Although jury "environment,” found. circumstance, was to this report in its the trial court penalty, imposed the death penalty the death imposition that the Court determined circumstances, imposi- Under these "questionable.” was as hardly regarded be in White can penalty of the death tion in White to those in circumstances similar establishing that throughout the State imposed generally is penalty the death establishing that regarded as assuredly cannot be and most throughout the State generally is penalty the death in cases such as TichnelTs. White, presently

Harris, Colvin, four cases Stebbing, imposed, was penalty pending appeal on which justify the collectively, sufficient to singly nor are neither Consequently, in this case. imposition penalty of the death necessary it is to look further. cases, compar in which the remaining eight

In all of the other person is that distinguishing ative characteristic of a during the course police than a officer was killed I imposed. was robbery, imprisonment of life the sentence are not sim of these cases agree majority with the that five remaining respect to the ilar case.34 With to the instant by the cases, from arbitrarily three excluded consideration necessarily review majority, the focus of in similar cases the shifts from a determination of whether imposed throughout generally been had State, culpability so far exceeds to whether Tichnell’s moral imprison to life that of in similar cases sentenced others justified. imposition ment that the of the death Porter, 22,551, In Criminal No. Circuit Court for Anne County, 1-2-81, Arundel during robbery, filed the course of a cases, 34. In mitigating substantially four of these circumstance of impaired capacity Allen, 26,323, was found. See Criminal No. Circuit Court County, 3-21-83; Johnson, for Anne Arundel filed Criminal No. County, 5-12-82; Miller, Circuit Court for Baltimore filed Criminal Trial 2346, No. case, in an 12-9-81; Allegany County, Mayers, Circuit Court for filed Criminal 23,921, County, Circuit Court for Anne Arundel filed 11-3-80. In one robbery Special Appeals conviction was reversed the Court of (No. unreported per State, opinion. Quickley curiam See v. 1981). September Term, 1981, filed 17 December the defendant shot and killed a gas station attendant who at the time of the shooting kneeling position. The defendant had not previously guilty been found of a crime of it violence and was unlikely found that he would engage further criminal activity.35 my view, In whether degree of moral culpability Tichnell, attributable to during who course of a storehouse breaking police killed a officer when unexpectedly threatened with apprehension, exceeds the degree of moral culpability Porter, attributable to who during robbery deliberately the course of a executed an inno victim, cent questionable and, is therefore, insufficient justify imposition penalty. of the death Consequently, it necessary to look further.

In in dis remaining comparative the two cases which the tinguishing is that a other a person characteristic than robbery, police during officer was killed the course of a view, was, culpability my Tichnell’s moral in less than that of who impris each of the defendants were sentenced to life Green, onment, 18108220-22, not death. In Ind. No. Crim 7-12-82, City, during inal Court of Baltimore filed the course restaurant, of robbery accomplice a a the defendant and an tied them cut repeatedly people, up, stabbed two one of and Thus, both aggravating of the victims’ throats. two circum — present killing during stances a the course of a were commission robbery and the than one murder more Tichnell, arising out of the same Unlike Green had incident. previously guilty been of crimes of found violence.36 Nevertheless, found mitigating trial court as a circum it unlikely engage stance that was that Green in fur would ther An activity. mitigating criminal additional circumstance was that the defendant’s conduct was not proximate sole two cause of the deaths. Additionally, 35. the record shows that Porter had not served in the military. 36. separate May Green was escape, convicted of two incidents of one in

and in one October of 1977. additionally The record burglary shows that Green was convicted of in 1957; receiving 1958; goods 1959; stolen assault and three larcenies breaking entering 1962; breaking three larcenies and in of entering and and 1964; 1966; burglary possession deadly weapon 1969; possession of a heroin, receiving goods, forgery, stolen and unauthorized use of a vehicle 1971; 1972; in vehicle in transportation two larcenies in interstate of a stolen motor 1973; possession deadly weapon of a in 1980. Johnson, In 82-377, George’s CT Court for Prince Circuit 12-1-82, a County, filed abducted and robbed the defendant Thereater, her thirteen-year-old girl. raped he her and beat After defendant about the head with nunchaku.37 victim, point released the he shot her blank in the back. previously guilty had not been found of a crime defendant unlikely It found violence.38 was that the defendant was engage activity. mitigating in further criminal Additional circumstances family background, his included Johnson’s by ability adjust to a environment evidenced structured as gave his Air experience, school and Force fact that he he up, leadership qualities himself and that had that would be helpful to other inmates. Johnson, persons other than of which

In in each Green robbery, of a during the course police officer were killed arbitrarily killed in a brutal were innocent victims in which the defen- under circumstances heinous manner It is apprehension. immediate not threatened dants were view, that, notwithstanding the var- reason, my for this circumstances, culpability Tichnell’s moral mitigating ious cases, both in these two is that of the defendants less than not death. imprisonment, life of whom were sentenced to conscientiously the ten I reviewed carefully and have I similar inventory that deem to be majority’s cases the five sim- reveals that none of My this examination case. Calhoun, imposed, was penalty ilar cases which death White, or collec- Colvin, singly either Harris, Stebbing, tively, generally imposed is penalty establish that death a had the State in in which who throughout person cases previously a guilty never been crime of violence found weapon 37. A nunchaku is a It "is a device often used in the martial arts. consisting wood, pieces metal, plastic, of two or other like substance con- chain, any rope, nected 24 exceeding or leather other flexible material not length.” (1957, (b). Repl.Vol.), inches in Md. § Code Art. additionally 38. The record shows that Johnson was convicted of assault deadly with weapon possession prohibited weapon of a in 1982. kills a police officer in an attempt to evade arrest when unexpectedly apprehension threatened with during storehouse breaking. Accordingly, these five cases are not sufficient, either singly collectively, justify imposi- tion penalty result, of the death in this case. As a the focus myof necessarily review shifts from a deter- mination of whether similar cases the penalty has generally been imposed throughout State, to whether Tichnell’s moral culpability so far exceeds that of others in similar circumstances imprisonment sentenced to life that imposition justified. of the death is life

My the five similar cases which examination of cases, in three imprisonment reveals that Porter, Monroe, questionable it whether Hughes, and is respective exceeds that of the culpability Tichnell’s moral cases, Johnson, defendants, while in two Green respec- is less than that of the culpability Tichnell’s moral tive defendants. circumstances,

Under these I am persuaded not culpability Tichnell’s moral so far that of exceeds others similar imprisonment circumstances sentenced to life imposition justified. of the death in this case is Thus, if I agreed majority even with the the scope as to of the (e) inventory (4), relevant of similar cases under I would not penalty imposed upn find that the death Tichnell justified.

Ill As a result majority’s exclusion of "death-eligibl¿ murder cases in prosecutor have, which the could but did not seek the death penalty” from inventory the relevant of sim- cases, (e) ilar I am determine, unable to pursuant (4), that the sentence of imposed upon Tichnell is excessive or disproportionate penalty imposed to the in sim- cases, considering ilar both the crime the defendant. Moreover, agreed majority’s even if I with restriction cases, inventory my relevant of similar based upon statutorily review, I mandated would hold the sentence of death in this case is excessive disproportionate. I therefore would set the sentence aside imprisonment.39 remand for modification to life conclusion, light 39. In I this need not consider the other issues majority opinion. addressed in the I

APPENDIX IN CALHOUN OF RECORD SUMMARY STATISTICAL . RELATING TO PROSECUTORIAL V. STATE DEATH DISCRETION IN PENALTY CASES

Case Details

Case Name: Tichnell v. State

Court Name: Court of Appeals of Maryland

Date Published: Nov 30, 1983

Citation: 468 A.2d 1

Docket Number: [No. 3, September Term, 1982.]

Court Abbreviation: Md.