*1 OF TICHNELL STATE DANNY RICHARD MARYLAND Term, 1979.] September 73 and
[Nos. 10, 1980. Decided June *3 argued J., The cause was before Murphy, Smith, C. JJ. Digges, Eldridge, Cole, Rodowsky, Davidson Frame, Clark B. Gary with whom was G. Hanna on the brief, for appellant. Burns, Jr., Defender,
George E. Assistant Public Murrell, Defender, Alan H. Public whom were Thomas Saunders, Defender, brief, J. Assistant Public on the for the Office of the Public Defender as amicus curiae.
Stephen Sachs, Attorney General, H. and Deborah K. Handel, Attorney General, appellee. Assistant *4 J.,C. of the Court. Cole opinion delivered
Murphy, Davidson, JJ., and concur in the concurring result filed opinions at page 745 infra.
In early morning January 18, 1979, hours of Richard confederate, Recek, Tichnell and a Oscar broke into Oakland, Army-Navy Davidson’s Surplus Store near County, Maryland, Garrett and stole handguns. ten Within
699 by store, was accosted leaving Tichnell after minutes dispatched who been Livengood, had Sheriff David Deputy by the a alarm activated response in silent the scene encounter, of their breaking. In the course storehouse Thereafter, Recek and deputy. and killed the Tichnell shot and fled the Livengood’s police cruiser Deputy took Tichnell morning in West later that They apprehended were scene. that he police to the that time Tichnell admitted Virginia. At shooting was not Livengood, he said the but Deputy had shot justifiable self-defense. and was premeditated County 1979, 2, grand jury of Garrett March On felonious with the charged Tichnell in one indictment store, grand and with breaking of Davidson’s storehouse charged Another indictment larceny handguns.1 of the ten murder of degree first premeditated Tichnell with the murder, in the felony with murder Deputy Livengood, with a manslaughter, using and with degree, with second A crime of third in the of a violence.2 handgun commission Deputy robbing Tichnell with charged indictment vehicle, stealing weapon Livengood deadly with police cruiser, larceny deputy’s and with grand handgun violation. venue, the change for a cases
Upon request Tichnell’s County. The removed to the Circuit Court for Wicomico were for trial jury three indictments were consolidated before (1957, Judge Maryland Code Richard M. Pollitt. Pursuant Vol., (b), §412 Supp.), Art. Repl. 1979 Cum. given timely Tichnell was notice that State would seek imposition the death sentence the murder of deputy sheriff. 23,1979, August jury
At on the conclusion of the trial wilful, Tichnell guilty found deliberate (1957, Maryland breaking Code 1. The storehouse count was based on — Vol.), breaking Repl. § Art. with intent to steal storehouse goods $100 of the value of or more. Code, any provides perpetrated "by 2. kind Art. that murder wilful, degree.” or shall constitute murder killing premeditated in the first deliberate and shall be murder perpetration, provides that murder committed Section robbery breaking attempted perpetration, felonious of a storehouse degree. the first *5 him Deputy Livengood. murder of It also found premeditated larceny breaking, grand guns, of the and guilty of storehouse After deputy’s unauthorized use of the vehicle. Tichnell statutory jury have a determine right waived his whether to death on the he be sentenced murder conviction should (see 413), Code, Art. the court imposed the death Additionally, imposed sentence. it terms of imprisonment breaking grand larceny storehouse and offenses. appeal, On Tichnell claims that the court committed prejudicial numerous in the pretrial errors course of the trial proceedings. He contends that the evidence legally was permit jury wilful, insufficient him convict premeditated deliberate and murder. He also attacks the constitutionality statute, Maryland’s capital sentencing as well as the imposition of death sentence in the circumstances of the case.
I. trial, At the the State adduced January evidence that on 18, 1979, at approximately 5:25 a.m. an alarm sounded the Garrett County office, Central Alarm indicating that a break-in had occurred at Davidson’s store located on the outskirts of Deputy Livengood Oakland. was immediately store, notified and drove to the accompanied Sarge, his 108-pound Shepherd dog. German K-9 Roger Officer Lewis Department alerted, Oakland Police was also he too drove to the scene.
The evidence showed that Davidson’s store is located between Routes 219 and being approximately equidistant to each road. The two routes parallel each other in a north-south direction. The front of the store is on the Route road; 219 side. Route 4 is a two-lane it is approximately feet from the rear of the store. There is no automobile entrance to the store from Route 4.
Officer Lewis arrived in the front of the store at approximately quite 5:27 a.m. It windy light snow falling; ice and snow covered the ground. Lewis noted open, and a broken had been of the store the front door *6 between the store. Sometime entered later he minute or so Officer Livengood contacted Deputy a.m. 5:31 and 5:28 a.m. radio, proceeding him that he was advising by police Lewis to remain in He told Lewis vehicle.” "suspect a investigate the store. in front of his car Wolfe, house a.m., whose James and 5:35
Between 5:30 store, was immediately Davidson’s behind Route overlooks yelling on the road. heard some when he leaving for work feet, car, he observed a of approximately From a distance on, headlights and its north, on Route with facing stopped headlights. After in front of the and forth dog pacing back fifteen seconds dog disappeared, about ten seconds shots, by split second followed Wolfe heard a burst later and a simultaneous spinning of tires the sound pause, faint vision of a then saw a Wolfe second burst shots. southerly in a move car, headlights, second without feet, after which twenty thirty 4 about direction on Route his house and called into "thump.” he heard a Wolfe went A office; then about 5:37 a.m. few the time was the sheriffs headlights later, the vehicle with Wolfe noticed minutes a.m., drove on Route 4 behind At 5:50 Wolfe leave the area. Deputy Livengood lying store and observed Davidson’s lane of the road. edge of the northbound facedown at the Lewis the sheriffs office and Officer promptly Wolfe notified to the scene.3 immediately responded and others shot seven times and was Livengood had been Deputy with three live and .38 service revolver dead. His caliber body. A pair located beneath his spent cartridges three was twenty-three feet in the road about of handcuffs was found Livengood’s police cruiser was body. the deputy’s from in the left dog, Sarge, had been stabbed missing. His K-9 dog The deeply cut. had been tongue his region shoulder feet from the twenty-six about road lying off the was at the arrived investigating officers body when deputy’s Plymouth, A 1965 shortly thereafter. scene; dog died instructions, Livengood’s Lewis had remained 3. In accordance with shooting. police hear the in front of the store. He did not car Tichnell, observed belonging to was identified as later ditch, lodged against 4 in a snow-filled off Route partially south, facing post; the vehicle wire fence deputy’s body. right forty feet from approximately open. Two bullet window was holes passenger were the left front car. One shot had struck in Tichnell’s observed lock; the other hit the left the door the vehicle near door of Browning A millimeter doorpost. front area of the revolver, the homicide later identified as semiautomatic Tichnell, found on the front seat weapon, and owned empty seven shells and seven gun car. The contained of his cartridges were found on spent two of the cartridges; loaded seat; the other car behind the driver’s floor of Tichnell’s 4 in a cluster near about Route casings were scattered five .38 fully A loaded Smith and Wesson body. deputy’s *7 three from Davidson’s store that had been stolen revolver the store from a field near was also recovered days earlier close to Route 4. morning a.m. on the 5:45 approximately
At Oakland, Jerry six miles from point at a about shooting, sign, guard hit a rail stop car run a speeding saw a Wilson vehicle, men ran from the Two go and over an embankment. Livengood’s police Deputy later identified as which was entry into a.m., gained armed men about 6 two cruiser. At Friend, which was located about of Clifford residence According to the police cruiser. yards from the wrecked son, Carl, one of the twenty-year-old Friend’s testimony of wearing a ski men, wound and was who had a shoulder killed a fellow.” Carl mask, "just he had shot and said that car, keys up to his tied the men demanded testified that family, ripped telephone out the members of the four him, hat, wires, departed a camera and a and took from $20 reported Friends the incident Camaro. The driving his 1978 the make and license number including the police, to Carl’s car. Virginia morning, a.m. that West approximately
At 9:30 driving and Recek observed Tichnell Troopers State Police car, they Among the two men. and arrested Carl Friend’s bag containing the car were other items removed from a handguns from stolen Davidson’s and a samurai sword bag and on it. also a dog dog blood hair The contained capable accommodating a 9 millimeter shoulder holster semiautomatic; type it was stained with blood of a Browning troopers Tichnell’s. that Tichnell matching observed shoulder, and right shot his a one gun had a wound in eye, and a right one-half inch laceration over his crushed tooth. arrest, day after he
On the of his had been treated for wounds, statements, gave police Tichnell two both evidence objection which were admitted into without statements, on their voluntariness. In the Tichnell said that 17, 1979, Recek, January he night of and casual Fairmont, acquaintance, drinking had together been Virginia. West Tichnell said he was little intoxicated of 11 p.m. January because between the hours on 17 and 3:30 January 18, a.m. on eight he had consumed six to beers at place, one place, four five Black Russians at second used 1/6 of an marijuana. ounce of Tichnell told Recek 15,1979 he had January broken into Davidson’s store on had .38 gun. taken a Smith and Wesson The two men decided night return to guns, Davidson’s that to steal more they drove to Oakland Tichnell’s Tichnell parked car. driveway
car in a beside a barn behind located Davidson’s. They store, broke lock on the front door entered store, and broke into a handgun showcase at the rear of the removing After handguns. being some in the store for about minutes, they through three to five Tichnell said that left *8 the front door and walked back to the car. then Recek discovered that he the gun had lost loaded which he had been carrying. Because it same had weapon was the that Tichnell 15, stolen January given from Davidson’s on and had night, Recek that told Recek it. go Tichnell back and find detection, Rather than risk Tichnell said he drove about give Oakland area to gun. Recek time to find the lost As he returning to the store, driving on Route he observed what thought he police were two cruisers front of southbound, store. proceeded past He store on to Route pick up in order to Recek behind the store. As Tichnell police of the on Route he saw a approached the rear store north, blocking precise his lane. At this facing cruiser moment, headlights, Tichnell said that his car which had time, that an been defective for some went out. He observed officer, hand, Recek and had him gun apprehended had stopped Tichnell said he his car about lying ground. on the twenty police got repair feet from the car and out to fifteen time, weapon At the officer his headlights. pointed his this Tichnell at him and told him to lie down on the road. deputy dog and he heard the order his K-9 to watch complied dog up dog him. The over Tichnell and as he looked stood eye through bit him on the side of his and the inside of his pain, out mouth. Tichnell said that he screamed hysterical, and around in a circle to running became started out, eye dog that the had torn his dog. Believing avoid the kit he get kept Tichnell ran to his car to a medical aid which deputy At Tichnell heard the point the back seat. this Recek; dog deputy order the to watch then followed car, gun in his spun placed Tichnell to his him around and time, of Tichnell’s face. At the door on the driver’s side this he moved the open. two-door vehicle was Tichnell said requested that the officer deputy’s weapon from his face eye. that permit him to tend to his wounded Tichnell stated (Tichnell’s) shoulder his deputy gun against his put then him of about a foot and half. shot from a distance Tichnell said that the shot knocked him into his car grabbed gun he as he fell. Tichnell deputy’s barrel deputy bring gun said that the then tried to down for holding deputy’s gun, another Tichnell shot. While still under the gun kept said he reached for his own which he continued, deputy front seat of his car. As the scuffle again, narrowly fired of Tichnell’s missing top bullet deputy thought head. Tichnell stated that he because going him he four or five shots at again, to shoot fired range. at He that the first shot deputy point-blank said head, that he deputy struck the in the and he was certain was dead. he and in his acknowledged
Tichnell statements *9 attempted scene in Tichnell’s car. After Recek leave the feet, thirty forty or said that car moving about Tichnell the a Realizing slid on ice and went off the road into ditch. stuck, take deputy’s that his car was Tichnell decided to cruiser, dog sitting found the the front seat. but As Recek car, get open dog lunged in the door of attempted to thereupon at him. Tichnell removed his samurai sword from shoulder; his car dog and stabbed the behind its left when he sword, dog withdrew the rolled out of car. Tichnell deputy’s said that and Recek fled in he then cruiser but Thereafter, subsequently wrecked it. gained he Recek house, nearby up entrance to a tied members of the four family took departing, their car. Before Tichnell telling family one member acknowledged of the that he had gotten into "skirmish” a police officer and had to kill him. said wearing Tichnell he was a ski mask when first he entered the Friend home purpose covering his bleeding face. He said he thereafter took the mask off and showed face to family. the Friend by
Other evidence adduced the State showed that of the deputy’s seven fired into body, fatal, shots two were one in the back lower and the other in the back head. No powder burns were the clothing upon found on or the wounds deputy. either Tichnell Expert testimony revealed feet, range had the shots been fired at a than less three claimed, powder Tichnell burned residue would have been found clothing on the deputy or wounds of both expert Tichnell. The witnesses concluded that the shots were fired at a greater distance than three feet.
There was evidence type that Tichnell’s blood was found on broken glass fragments from the windshield of deputy’s car, suggesting that the laceration over Tichnell’s eye may been have at the car received time the was wrecked near the Friend Except statements, home. for Tichnell’s there was no evidence that the laceration was caused dog bite.
Testimony Dobb, from Sergeant received First John who charge training was in dogs K-9 for the Maryland State explained Police. He dog that K-9 is trained to break
any any person and to attack who is prior command *10 Dobb, Sarge, who trained said attacking Sgt. his handler. outstanding in attack and handler dog was that produced This was to refute protection work. evidence Sarge continued to watch Recek Tichnell’s statement that Livengood. Deputy the entire encounter with throughout showing by the State that Evidence was also adduced from holster, recovered Carl Tichnell’s which was shoulder arrest, of Tichnell’s was stained with Friend’s car at the time evidence, prosecution sought to this blood. From wearing the holster at time that Tichnell was establish carrying in and was the murder he shot the shoulder was he broke into the store with his armed weapon in it when confederate Recek. intended to refute prosecution introduced evidence he Oakland while was that he drove about
Tichnell’s claim find lost This tended waiting gun. for Recek to evidence that, in of the time involved between to show view store, shooting deputy, break-in at not traversed the route around Oakland Tichnell could have he he had taken. which said aid into Tichnell’s medical
Also introduced evidence was sword, kit samurai guns, and the kit. Unlike the stolen he fled in car when and Recek had been left behind Tichnell’s deputy’s police in cruiser. from the crime scene he in own behalf. He said that was Tichnell testified graduate, a married with thirty-two years age, high school child, record, weapons no and collected one had criminal Army a in the for several hobby. paramedic He had been He had years worked at a steel mill as a laborer. and had years immediately to the prior for over two unemployed been Tichnell said that when the shooting. testimony, In his lie him on Route he was made to accosted deputy first in point approximately six to ten feet in the street at a down he was position, In this Tichnell said front of his vehicle. cruiser, and the two Livengood’s car and between his lying Recek was twenty apart. feet vehicles were about dog and the was deputy’s feet from the cruiser about three pacing back forth. dog
Tichnell described his actions after the bit him: my feet, jumped running tight just "1 circle to keep away dog, plus eyes. from the I blind in both I couldn’t approximately minutes, see for four three or until the vision coming my eye started my back left and I could see car and headlights. car my open time I made a door obtain "At that run apply so I bag aid the back the car could medical out, if bandage my eye in it was to see there could wet case anything preserved. be seat, "At time I into the I heard the leaning back — —
officer putting dog told him to watch Oscar I running heard him me. towards This was about the same *11 I time was I running. that At this time screaming was hysterically.
"I opened back seat to in. is reach That when he reached across the window and me spun around. And when he spun — me he placed face, around his weapon my and I moved it —I weapon my excuse me moved the out of line of vision and asked him not put my my to it in I put face. hands back air.
"At my that time he fired round right shoulder, into me spinning back towards car. I grabbed At this time my barrel of his weapon as I and stuck out left falling was fall, arm my to prevent shooting break to him from me I again. glanced At this off time the seat with hand my and directly my fell upon Browning high power.
"Struggling get to out of the car he fired another round at me with both on weapon. hands At this time I shoved his weapon upward and through ducked and the bullet tore my just hair. pulled back, At time I the hammer and he was coming I weapon back down with and was coming up mine, with and I exchanged several shots.” testimony Tichnell’s the statements was consistent with Recek, he given police had to the the time of his arrest. at murder, who also testify. was under indictment for did not jury, in accordance Judge Pollitt instructed defense, as follows: Tichnell’s evidence that on the date you "If from the believe in Oakland this Discount Store question near Tichnell, apprehended was defendant, Richard Livengood breaking Deputy Sheriff surrendered, and that and had entering the store dog he by the being guarded thereafter while obtain ran to his car to on the face and bitten treatment, attempting not and was medical attempting and was not or resist arrest evade and that at Livengood, harm Sheriff Deputy shooting at started Livengood time Officer circumstances defendant, then in such necessary to may use whatever force defendant exercising attack, doing be and in so would repel the guilty not be and would right of self defense in such circumstances. felonious homicide shooting words, if the time of the "In other at to arrest submitted peacefully had defendant while arresting officer by the thereafter shot attention, then the get medical attempting right self defense defendant would have necessary to reasonably force as was could use such bodily harm to himself. or serious prevent death you of self defense doctrine apply "In order to breaking felony of storehouse must find that *12 had and that defendant completed over and of self arrest, the defense submitted to because In felony murder. in cases of not available defense is is the the defendant felony cases of murder felony. of a in the commission aggressor engaged force amount of may a reasonable person "A use circumstances defense, including some in self actually believed If the defendant deadly force. or serious death danger he imminent of was in only could save himself bodily from which he harm assailant, had and against his by using deadly force believe, he had to so then grounds reasonable deadly force order to defend right employ himself.” the State maintained presented,
In view of the evidence it, had related but not occur as Tichnell shooting that the did in cold blood as he deputy murdered the rather that Tichnell scene of the from the interrupted departure prosecution urged consequently, breaking; storehouse in the felony murder committed guilty Tichnell was of wilful, breaking deliberate the storehouse and course of premeditated murder.4 shooting Tichnell’s version jury rejected first wilful, premeditated deliberate him guilty found Judge instructions from under detailed degree murder Pollitt, taken. exceptions no were to which
(A) Judge Tichnell contends that Pollitt committed reversible in consolidating error the three indictments for trial over his State, objection. upon McKnight He relies 280 Md. (1977),
"First, embarrassed, may [the accused] become presenting confounded in separate defenses. ...
Secondly, jury may cumulate the evidence of the when, various charged guilt crimes and find if the separately, offenses were considered it would not do very least, so. At joinder of multiple charges may produce a hostility, may latent which itself prejudice Thirdly, cause to the defendant’s case.
jury may use the evidence of one of the crimes charged, them, or a group connected to infer a disposition criminal on part of the defendant robbery 4. jury The State abandoned the count before the retired consider its verdicts. *13 other may guilty also be found
from which he charged.” crimes omitted). (citations at 609
280 Md. by argues prejudiced joinder that he Tichnell forth reasons identical those set three indictments for Jones, in State v. Md. McKnight and reiterated (1979). A.2d 1182 may provides that the court order
Maryland Rule 745 a "if the to be tried charging together two or more documents joined charging been in a single offenses ... could have provides that two or more offenses document.” Rule 712 may "if the charged charging in the same document be character or are charged offenses are of the same or similar or on two or more acts based on the same act or transaction together constituting parts or or transactions connected provides: or Rule 745 c plan.” common scheme any party prejudiced will be appears "If it that counts, charging for trial of documents joinder defendants, may, or the court its own motion upon separate trials of any party, the motion order or defendants, counts, grant or charging documents or requires.” any justice other relief that a rules, and Jones held McKnight these Interpreting unrelated offenses charged with similar but defendant he establishes a severance where entitled to mutually not offense would be as to each evidence separate trials. at admissible trial, the indictments seeking joinder
In crimes McKnight prosecution proffered that unlike minutes related, ten or fifteen occurred within charged were other, one continuous constituted each In ordering criminal transaction. uninterrupted a, Judge agreed Pollitt under Rule 745 consolidation prove noting addition position, State’s murder, have prosecution would felony of a commission underlying felony of either storehouse to establish charged in the other being breaking robbery, both crimes joined for trial. indictments *14 joinder proper
We in this case under Rule think charged 745 a because all the offenses were related and were on or on or "based the same act or two more acts transaction or together transactions connected ...Rule 712 a. theAs maintains, one State the offenses were so intertwined that be of proved producing could not without evidence other. McKnight four independent involved and distinct robberies, neighborhood, committed in the same over offenses, period. recognizes one-month That case that where character, trial, joined even of a similar are for under circumstances where the evidence as to each offense would trials, not mutually separate be admissible at the prejudicial apt effect of such evidence is to outweigh probative its value. Where, however, of the evidence other be crimes would mutually admissible, joinder is within the court’s sound trial discretion. is, course,
It
of
well settled that evidence
offenses
of other
particular
inadmissible,
independent
charged
of the
crime
is substantially
unless
evidence
relevant
some
other
purpose than to show that the accused committed the crime
State,
on
v.
trial
of
character. Cross
because
his criminal
282
468, 473,
(1978);
Md.
McKnight,
386
supra,
A.2d 757
280
State,
612;
v.
664,
Md.
Ross
669,
at
276 Md.
Some categories well-established outside evidence ambit rule narrow of exclusion evidence of include (1) (2) motive, other intent, crimes which tends to establish (3) (4) mistake, absence plan common scheme or embracing the commission of two or more so crimes related to each other proof other, of one tends to establish the (5) the identity person charged with the
712
exceptions have been
a crime on trial. Other
commission of
Jones,
See, e.g.,
supra,
v.
284 Md.
State
well.
recognized State,
McKnight,
473-74;
supra, 282 Md. at
v.
238;
Cross
at
612; Ross,
supra,
276
Md. at 669-70. One
supra, 280 Md.
at
of evidence
other
permits the admission
exception
such
blended
are so connected or
the several offenses
crimes when
they form one
of time or circumstances
point
without
transaction,
fully
explained
cannot be
shown
Cross,
See,
supra,
We conclude that the trial did not abuse his consolidating discretion in for the three indictments trial by joinder not prejudiced any Tichnell was under McKnight.5 the reasons claimed
(B) he to obliged change Tichnell contends that ask for a County, by of venue from Garrett but that he was prejudiced County, to the removal Wicomico some 300 miles to the east. thereby He contends that he was denied his constitutional right Maryland Art. 20 of the Rights under Declaration of try they facts of case where arose.6 He also contends he jury was entitled to be tried of his peers under Rights, but Art. Declaration that Wicomico County jury not jury peers did constitute in a case arising County, high from Garrett the Appalachian mountain region.7 These contentions are devoid of merit. object
Tichnell did not
the removal
the case to
County,
Wicomico
nor did he
a further
seek
removal
*16
circumstances,
county.8
another
Under these
the claims of
"identity”
exceptions
5. The
and "common scheme”
to the other crimes
applicable
rule are not
in the circumstances of this case. Because Tichnell
identity
trial,
admitted
identity
his
at
exception
the outset of
was
inapplicable.
Herrick,
(6th
P.
1
Criminal
Underhill’s
Evidence
210 at 637
1973).
ed.
crimes
exception
common
inapplicable
scheme
was
because the
charged
in
encompass
the three indictments did not
"single
a
inseparable
Jones,
plan.”
supra,
State v.
714
20
properly
are not
violation Art.
prejudicial removal
right under Art. 24
Maryland Rule 885. The
to a
before us.
jury. Wright
See
by
guarantees
trial
judgment by
peers
one’s
(1852).
Lessee,
429,
Wright’s
v.
Although
Md.
452
Art. 21
2
v.
Couser
impartial
right
jury,
to an
guarantees
further
State,
125,
(1978),
accused,
an
Tichnell atmosphere because a hostile impartial jury trial (a) officers, police persons and other generated by parade all of whom for the police testified programs, associated (b) trial, by of "erratic a number statements” State at jury speculation based on prosecutor to made evidence, upon prosecutorial other rather than (c) misconduct, judge overruling by the trial defense issues, evidentiary damaging thus objections on and motions (d) record, to the inflammatory exhibits by displaying which marked containing exhibits were and also boxes jury, "murder” of the relating large black letters as in (e) to Tichnell as West .by undue reference deputy, and Virginian. carefully record and conclude that reviewed-the
We have best, contentions, allegations bald at represent which these without merit. by specifics, are unsupported Judge give Pollitt did not Tichnell also contends jury particular to the failed instructions adequate on State clearly that the burden was jury to instruct beyond did not act that he prove reasonable doubt not deputy. he Since Tichnell did shot self-defense when Pollitt, given by Judge object the detailed instructions 757. Maryland Rule precluded. of right review as jury error the court’s plain we no Moreover see to the instructions, including pertaining its instructions *17 of self-defense. Tichnell’s claim proof State’s burden on (1976).9 Evans, A.2d 629 See Md. State (C) improperly Tichnell contends that the trial court admitted pertaining evidence to crimes committed at the Friend any residence. He he trial for points out that was not on offenses, he prejudiced by these and claims that was evidence, i.e., admission of this testimony Carl Friend that Recek wearing and man had ski mask entered the brandishing guns, up Friend residence the members of tied car, family, cash, stole Carl’s camera and a hat. $20 objected testimony relevancy Tichnell to on Friend’s grounds. He court advised the before Friend testified that identity his persons as one of who entered Friend "proving home would be claimed admitted. He other crimes which are not charged the indictment ... will certainly they taint jury upon pass this should be called upon the Judge death sentence.” Pollitt ruled that evidence of flight was relevant bearing and had a on the consciousness of guilt and "in process was admissible even if it happens to show the commission some other crimes.” argues State, State supra, that under Cross v. it is permissible to introduce evidence of crimes other than those on motive, intent, trial to establish identity a common plan. conduct, It contends that Tichnell’s appearance and conversation, at a shortly killing, time after the were directly State, relevant to his According state of mind. to the the continuation of flight, attempt disguise, at and the statements made Tichnell at the Friend house prove the intent and motive accompanying the earlier crimes.
We think that Tichnell objection waived to the admission of the contested evidence. objected While he Friend’s testimony it before given, and moved jury proving 9. The instructed: "The State the burden based has upon necessary every the evidence introduced trial fact at convict charged. defendant of the crimes with which he is This burden remains throughout the State the trial. The defendant does not have the burden of proving any producing his innocence or evidence.” *18 not given, it was he did
unsuccessfully for a mistrial after
of his first statement
object to the admission
thereafter
the
committed at
recounted the crimes
police,
the
which
admission of his second
object
home.
did he
to the
Friend
Nor
the
concerning
statement, which
contained details
also
2,
522
Maryland Rule
d
of
offenses. Under
commission
these
evidence,
to be
when
claimed
is not reversible error
it
See, e.g.,
objection.
inadmissible,
admitted without
is later
(1979), cert.
State,
498,
A.2d 1221
Robeson v.
Md.
403
285
Storage,
Fidelity
Bldg. Corp. v.
denied,
S & S
1021;
444 U.S.
State,
v.
Md.
Peisner
(1973);
236
184,
270 Md.
310
778
A.2d
denied,
1001,
cert.
144,
(1964),
379 U.S.
137,
following applied standard be *19 "whether support a criminal conviction: of the evidence to reasonably finding of support a record evidence could This U.S. at 318. guilt beyond a reasonable doubt.” 443 " it to itself whether require standard does not a court 'ask guilt at the trial established believes that the evidence in (emphasis at beyond a reasonable doubt.’” Id. 318-19 "whether, Instead, apply is after original). the standard to favorable to the viewing light the evidence in the most any trier of fact could have found the prosecution, rational beyond reasonable doubt.” essential elements of the crime Id. in (emphasis original). at 319 determining law to whether principles applicable wilful,
felonious homicide constitutes
deliberate
premeditated
killing
well
For a
to be
murder are
settled.
kill;
and intent
specific purpose
"wilful” there must be a
a full and conscious
to be "deliberate”
there must be
kill;
knowledge
purpose
"premeditated”
of the
and to be
killing
design
to kill
have
an
preceded
must
time,
is,
enough to be
appreciable length of
time
unnecessary
or
It
the deliberation
deliberate.
is
premeditation
any particular length
existed for
shall have
(La.
385,
(1966);
Davies,
586,
2d
N.E.2d
v.
350 So.
588-89
386-87
State
1977);
Gilday,
851,
474,
367 Mass.
327 N.E.2d
864
Commonwealth v.
(1969);
(1975);
State,
848,
v.
169,
v.
85
852
State
Williams
Nev.
451 P.2d
Ross,
Jones,
513,
555,
(1977);
292 N.C.
234 S.E.2d
561-62
State v.
92 Ohio
29, 108
77,
(1952); Whittington
State,
App.
v.
time.
existence is discerned from
State,
v.
383, 387, 330
(1974);
E.g., Gladden
273 Md.
A.2d 176
State,
v.
200, 208-09,
875,
Robinson
249 Md.
238 A.2d
denied,
cert.
928,
259,
265;
89 S. Ct.
21 L. Ed. 2d
393 U.S.
(1953).
Chisely
State,
87, 106-07,
v.
Md.
"the accused must have had reasonable
believed,
believe,
and have
fact
himself
danger
imminent or immediate
of death
apparent
bodily
or serious
harm from his assailant
assailant____In Maryland it is for the
potential
trier of the facts to determine whether the accused
If
justified
meeting
force with force.
existed, the force used
justification
found to have
be
*20
excessive’,
and
must not have been 'unreasonable
is,
'than
that
must not have been more force
the
”
reasonably
exigency
demanded.’
State,
545, 549,
Guerriero v.
213 Md.
Accord, 447, 453, 194 DeVaughn v. 232 Md. A.2d 109 denied, 693, 11 cert. (1963), L. Ed. 2d 376 U.S. 84 S. Ct. (1958). State, Bruce v. 623; 87, 96-97, 145 218 Md. A.2d As the record that Tichnell introduced evidence reveals self-defense, jury sufficient to issue with generate respect the defense. State v. the State had negating the burden of Evans, supra, Md. at 207-08. version obliged not to believe Tichnell’s jury
The was case, evidence in the it did not. From the shooting the doubt, find, a reasonable rationally beyond jury the could struggled he not shot while Deputy Livengood that testimony of Tichnell’s car. Wolfe’s with Tichnell at the door followed almost gunfire, a burst showed that there was wheels and immediately by spinning sound of the — wholly volley a version simultaneous of additional shots The testimony. Tichnell’s inconsistent with statements deputy’s or powder burns on either the gunshot absence of statements clothing also contradicted Tichnell’s Tichnell’s The five range. spent the at point-blank that shots were fired body proximity deputy’s to the shells found close from was shot at distance constituted evidence that he some jury The find from the evidence that Tichnell’s car. could Oakland lying Tichnell was when he said he drove around have waiting gun. while for Recek to find the lost It could K-9 by bitten the lying being found that Tichnell was about at alleged struggle dog, dog’s during about inaction car, stabbing dog inside of and about It have found from the wounds deputy’s cruiser. could his were fired into by deputy suffered that the fatal shots suspect body investigating from behind when he was vehicle observed at the scene. bloody jury could have from the evidence of found when he said he was lying
holster that Tichnell was he when Davidson’s store and when unarmed be broke into jury 4. And the on or near Route deputy first confronted and his flight, from the course of Tichnell’s could have found time, guilt he during actions that was conscious — statements that at variance with his later circumstance sum, In killing justifiable self-defense. find ample an basis to supplied jury provided evidence wilful, murder premeditated degree first deliberate In Virginia, supra. v. under the test articulated in Jackson concluding, principle not unmindful of the so we are interval of time firing separated of two or more shots an v. may premeditation. be as evidence of See Wilson viewed 606, 165 State, A.2d State, supra; 223 Md. Cummings *21 720
(1960); (1953). State, 87, Chisley v. 202 Md. 577 95 A.2d (1980). State, 414, Fuller v. Md. 413 App, 45 A.2d 277 II (A) Tichnell Maryland’s next contends that death penalty statute, 1978, ch. Maryland 3 of the Acts of now codified as (1957, Code Repl. Vol., 1976 1979 Cum. Supp.), 27, Art. 412-414, facially §§ unconstitutional it imposes since Eighth cruel and unusual in violation punishment of the Fourteenth Amendments to the federal constitution and Art. the Maryland Rights.12 25 of Declaration of By ch. 115 of the Acts of Assembly General general jurisdiction invested trial courts of with the discretion to person sentence a first degree convicted of imprisonment. murder to either death or life In Furman v. Georgia, U.S. S. Ct. Ed. 2d L. (1972), Supreme Court in per opinion declared curiam death sentences under discretionary administered such statutes constituted cruel and unusual punishment violation of Eighth and Fourteenth Amendments to the federal constitution. Five Justices supported per the Court’s decision; curiam four Justices dissented. Justices Brennan and Marshall found the imposition penalty of the death constituting unconstitutional cruel and unusual punishment in all cases. Douglas Justice concluded that sentencing procedures, juries which judges vested or uncontrolled in deciding impose discretion whether to either capital punishment imprisonment, arbitrary led to discretionary application penalty unpopular groups, violating concept protection implicit thus equal Eighth provides: 12. The Amendment "Excessive bail shall not be required, imposed, punishments nor excessive fines cruel nor and unusual inflicted.” provides: ought required, Art. 25 "That excessive bail not to be nor inflicted, imposed, punishment excessive fines Courts of Law.” nor cruel or unusual *22 also Justice Stewart punishments. unusual cruel and ban on concluded, and penalty of the on the administration focused were cruel the Court before death sentences that the part, in freakishly wantonly and they were because and unusual Focusing on the few. selected capriciously upon a imposed lack of a and the penalty infrequent imposition in death cases which distinguishing for basis meaningful not, Justice White it is in which from the cases imposed is penalty of the death discretionary imposition found such a theme A central punishment. and unusual cruel constitute Blackmun, Powell (Burger, dissenting of the four Justices deference judicial the appropriateness Rehnquist) enactment of legislative in the society’s will as manifested penalty statutes. discretionary death Furman, Supreme Court decision on its
Based
on its
pending
cases
all of
the death sentences
vacated
proceedings. The
for further
docket,
them
and remanded
jurisdictions
read
varied. Some
response to Furman
while
mandatory
penalty,
death
requiring
Furman as
unbridled
merely to forbid
decision
construed the
others
statutes.
sentencing
in capital
discretion
175, 182,
State,
"We any of sentence under of the death imposition discretionary existing presently statutes authorize, not require, but do Maryland which Furman as under is unconstitutional penalty Fourteenth Eighth violative In other federal constitution. to the Amendments words, holding think the net result we is penalty death is Furman not imposition when its unconstitutional 184. mandatory.” 267 Md. at Assembly to Furman responded
The General mandatory penalty death Bartholomey by enacting 1975, Maryland Code 252, codified as Ch. Acts of statute. (1957, Vol.), 27, 1976 Repl. Art. 413. Under this legislation, penalty the death had to be automatically imposed upon conviction of a specifically defined and narrowly degree drawn class first murders.
In Carolina, Woodson v. North 428 U.S. 96 S. Ct. 2978, 49 (1976), L. Ed. 2d 944 Louisiana, and Roberts v. U.S. 96 S. Ct. 49 L. Ed. (1977), 2d 974 Supreme mandatory Court held that death penalty statutes degree first murder because, were unconstitutional Woodson, they stated in lacked *23 humanity respect underlying
"the fundamental
Eighth
requires
[which]
the
...
Amendment
consideration
the
and
of the
of
character
record
individual offender and the
circumstances
particular
constitutionally
as
offense
indispensable
inflicting
of
of
process
part
(citation
penalty of
The Court identified other shortcomings constitutional of a mandatory It penalty death statute. said in Woodson mandatory such measures violated contemporary civilization, 289-301, id. at standards and impermissibly sentencing vested standardless discretion in juries, id. at 302-03.
In Roberts, accordance with Woodson and held we Maryland’s mandatory penalty death statute was State, 466, unconstitutional. v. 278 Blackwell Md. 365 A.2d (1976), denied, 918, 545 2183, cert. 431 U.S. 97 S. Ct. 53 L. (1977). said, statute, Ed. 2d 229 constitutionally we defective not provide because it did sufficient whereby
"standards
sentencing authority
can
consider
or
individual
circumstances
offender;
characteristics of either the
or
offense
indeed, all those convicted under the
are
statute
alike,
treated
regard
without
circumstances.”
In the aftermath death constitutionality mandatory penalty considered constitutionality of "guided statutes, but also addressed penalty the death statutes upheld It statutes. discretion” 2909, Ct. v. 96 S. Gregg Georgia, 428 U.S. Georgia, Florida, Florida, Proffitt v. 428 U.S. (1976); 2d 859 L. Ed. Jurek (1976); Texas, 2960, 49 L. Ed. 2d 242, 96 Ct. S. L. Ed. 2d 929 Texas, Ct. 96 S. 428 U.S.
(1976). rejected argument that the Gregg, In the Court punishment cruel and unusual constitutes penalty death U.S. 168-87. The Court’s at circumstances. under all constitutionality of guided opinion approved plurality sentencing statutes. It construed Furman capital discretion imposed not be under penalty could holding that death as it risk that that created a substantial sentencing procedures arbitrary It capricious manner. inflicted in an would be stated: further discretion is that where
"Furman mandates grave on body a matter so sentencing afforded a human life should of whether the determination suitably must be spared, that discretion be taken and limited so as minimize directed risk Id. at wholly arbitrary capricious action.” 188. Gregg, upheld by
The death statutes the Court in penalty *24 Proíñtt provisions each contained three which Jurek the concerns raised in Furman. First, guarded against each discretionary provided of new statutes for a the bifurcated guilt punishment that be separately trial so would Second, of imposition penalty determined. the death which aggravating restricted in certain cases sentencing authority circumstances were established. The the of required mitigating was also to consider existence Texas, supra, circumstances. The Court stated in Jurek at of type provision U.S. that this "guides [sentencing authority’s] the focuses of objective particularized consideration circumstances of the individual offense and individual before it can a sentence impose offender of death.”
Finally, upheld the statutes that were provided expedited for appellate penalty review of death a statute as check against arbitrary or imposition random of the death penalty. statute,
Maryland’s capital sentencing current Art. 412-414, §§ our following enacted decision in Blackwell v. State, supra, retains penalty degree death for first guilt murder.13 The or of charged innocence an accused murder, first degree properly who is notified the State’s intent to seek the death penalty, is determined either by jury traditional manner court or a as first step of a trial. soon practicable bifurcated As after the murder, guilty degree separate defendant found of first a sentencing proceeding must be held to whether determine (a). death or life imprisonment imposed. § should be (b) provides proceeding Section that this shall be heard: "(1) jury Before that determined guilt; defendant’s or
(2) jury impaneled purpose Before a for the proceeding if:
(i) upon plea defendant was convicted a guilty;
(ii) The defendant was convicted after trial a sitting jury; before court without a (iii) The jury that determined the defendant’s guilt by good has court discharged been cause; or
(iv) Review the original by sentence of death court of competent jurisdiction has resulted remand for or resentencing;
(3) alone, Before the court if jury sentencing proceeding is waived the defendant.” (b) provides 13. Section 412 person "[a] guilty found degree of murder in the first shall be imprisonment sentenced either to death for life. The sentence (1) imprisonment shall be for life unless the State notified the person writing days prior at least 30 trial it intended to death, person seek a sentence of and advised the each *25 aggravating a (2) upon rely, 413.” circumstance it which intended to imposed sentence of § death is in accordance with (c) may range of evidence specifies wide Section relating including evidence proceeding, at this be introduced mitigating or any statutorily specified aggravating to proceeding, argument sentencing At the circumstance.14 (c) § 413 or a death sentence. may against for presented be (2). sentence, sentencing determining appropriate In — — first consider judge jury or must
authority either the doubt, statutory any of ten whether, beyond a reasonable (d).15 If § 413 exist. circumstances aggravating (c) permits of: further the admission 14. Section 413 "(iii) convictions, pleas guilty any prior criminal Evidence contendere, prior or of such convictions or nolo pleas, or absence sentencing in other to the same extent admissible procedures; (iv) However, any investigation Any report. presentence report not in the is as to sentence contained recommendation admissible; and (v) probative Any value other evidence that court deems sentence, provided fair the defendant accorded a and relevant to any opportunity to rebut statements.” (d) specifies following aggravating circumstances: 15. Section 413 officer who was The victim was law enforcement performance in while duties. murdered The the murder at a time when he defendant committed any in institution. confined correctional an The the murder in furtherance of defendant committed custody, escape attempt escape or an to from or evade the lawful arrest, institution or guard or or an officer or of a correctional detention of by a officer. law enforcement attempted hostage in The taken or to be taken victim was kidnapping attempt kidnap or an or course of a or abduction abduct. The 2 of this victim was a child abducted violation of article. pursuant an The defendant committed the murder agreement promise remuneration or or contract remuneration to commit the murder. employed person engaged The or another defendant committed to an pursuant commit murder and murder was agreement remuneration. promise of or contract for remuneration or the murder, the sentence At the time of the defendant under imprisonment of death or for life. than of murder The defendant committed more one offense degree arising the first out of same incident. committing or committed the murder while defendant arson, attempting robbery, rape or sexual offense to commit degree.” the first *26 726
sentencing authority beyond does not find a reasonable doubt the existence of one or more of the aggravating circumstances, then the sentence shall be life imprisonment. (f). If, however, § 413 sentencing authority beyond finds a reasonable doubt the of existence one or more aggravating factors, whether, then it must determine by a evidence, any of preponderance eight one of mitigating § (g).16 circumstances exist. 413 The statute requires that a sentence of imprisonment if, life by be imposed a evidence, preponderance authority of the sentencing finds that mitigating circumstances outweigh the (h) (1) (3). aggravating § circumstances. 413 and If the mitigating circumstances do not outweigh the aggravating by preponderance evidence, circumstances a of however, (h) (1) then § a sentence of death imposed. must be (2). The sentencing authority’s decision writing, must be in and if the by decision is jury, made a it must be unanimous following mitigating
16. specified (g): § The circumstances are in 413 "(1) (i) previously guilty The defendant has not a been found of (ii) violence; plea guilty crime of entered a of or nolo contendere to (iii) charge violence; judgment probation a of of a crime or had a of stay entry judgment charge on entered on a of a crime of paragraph, violence. As used in this 'crime of violence’ means abduction, arson, escape, kidnapping, manslaughter, except murder, involuntary manslaughter, mayhem, robbery, rape or or degree, attempt sexual or offense the first second an to offenses, any handgun commit commission of a of these or the use a in the felony or another crime of violence. (2) participant The victim the defendant’s conduct or consented to the act which caused the victim’s death. (3) duress, The defendant acted under substantial domination or provocation constitute a person, but another not so substantial as to complete prosecution. defense to the (4) capacity The murder was committed while the of the appreciate criminality defendant to hisof conduct or to conform requirements substantially impaired conduct to the of law was disorder, incapacity, as 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 sole cause of the victim’s death. (7) unlikely It engage is the defendant will in further activity continuing criminal society. would constitute threat (8) Any jury specifically other facts which the or the court sets writing mitigating forth in that it finds as circumstances in the case.” (i).17 (k), by § the foreman. Under signed required the sentence determined impose trial court If, however, authority. jury is unable to sentencing time, agree within a reasonable amount upon sentence life jury a sentence of impose the court must dismiss (k) (2). § 413 imprisonment. (1) Appeals that the Court of provides further
Section govern the conduct may adopt procedure rules of provision, we Pursuant to this sentencing proceeding. 772A, *27 1979 January effective Maryland Rule adopted case). The rule in this days prior to the murder (eighteen is the the first of which major requirements, three imposes in the As formulated form verdict sheet. of a standard use writing specify in rule, authority must sentencing the mitigating or circumstance aggravating whether each §by 413. Rule degree proof of mandated by the established to advise the the trial court requires 772A e further (f) of the right appeal. Finally, subsection of his defendant report an extensive prepare trial court to obligates rule the sought, whether or every penalty the death is case where to us it The which must be submitted imposed. report, not is information rule, designed to detailed provide under the is victim, defendant, offense, and the the the concerning the of of In when a sentence circumstances the trial. instances judge opinion imposed, death is the trial must state accuracy justified. whether the The factual sentence may by parties on judge’s report the trial be commented days receiving within after it. five by review expedited
Provision made the statute (j), by authority § sentencing 17. Under the determination must specify following information: "(1) any, exist; Which, aggravating if it finds to circumstances (2) Which, any, exist; mitigating if it finds to circumstances (3) any mitigating found under Whether circumstances outweigh aggravating (g) subsection circumstances found (d); under subsection (4) aggravating found under Whether circumstances (d) by outweighed mitigating subsection under subsection circumstances are not (g); (5) (f) sentence, in accordance with subsection determined (h).” or this Court the appropriateness of the death sentence in the (a) (b). § circumstances case. In addition to our any consideration errors properly before us on appeal, (e) § 414 directs in the course our review of record, on sentence we must determine: "(1) imposed Whether the sentence of death was under the passion, prejudice, influence of any or arbitrary factor; other
(2) Whether the evidence supports jury’s or finding court’s of a statutory aggravating (d); § circumstance under (3) supports jury’s Whether the evidence or finding aggravating court’s that the circumstances outweighed circumstances; not by mitigating are (4) Whether sentence of death is excessive or disproportionate penalty imposed in similar cases, considering both the crime and the defendant.” (f) (2),
Under we are directed to include in our decision a reference to "similar we are cases” that considered. We (1) obliged options: the statute to exercise one of three (2) sentence, affirm the death set aside the sentence and *28 remand the for of sentencing case the conduct a new (3) proceeding, or set aside the sentence and remand (f) § to imprisonment. modification of the sentence life (1) (i)-(iii).
We turn now to consideration of of constitutionality the Maryland’s capital sentencing statute. That it is not mandatory death penalty statute is clear. Because it allows circumstances, for a broad of it mitigating consideration plainly scrutiny v. withstands under Woodson North Carolina, Louisiana, supra, and supra.18 Roberts v. Furthermore, it is clear that the the complies statute decision, imposition 18. mandatory Supreme In a later the Court concluded that of police a constituted degree death sentence for first murder aof officer Louisiana, punishment. cruel and unusual Roberts v. 431 U.S. (1977). Ct. 97 S. L. Ed. 2d 637 in the vested guiding the discretion general methods of three Proffitt, The and Jurek. authority Gregg, under sentencing and the procedure, trial a bifurcated provides statute in which is limited cases penalty death of the imposition aggravating one authority finds at least sentencing the authority required is sentencing circumstance. A circumstances. mitigating of the existence
consider if only mitigating the imposed be may of death sentence aggravating the outweigh do not circumstances authority still has sentencing Although the circumstances. and statute, by it clear guided is under discretion supra, 428 U.S. at Georgia, Gregg objective standards. See 197-98. third
Moreover, statutory incorporates scheme i.e., arbitrariness, against expedited major safeguard As of to this Court. all death sentences appeal automatic sentence indicated, enjoined by statute to review each we are it arbitrarily imposed, death whether was and determine finding of the existence of supports whether the evidence whether it is not aggravating an circumstance and and, finally, outweighed by mitigating circumstances disproportionate whether the sentence to sentences short, face, that, In hold its imposed in similar cases. we on the death Maryland statutory imposition scheme for and penalty requirements Eighth satisfies constitution, Fourteenth Amendments federal Maryland Rights. Art. 25 Declaration of
(B) § by process Tichnell next maintains that 413 violates due section, by reason of proof required the standards of proof its allocation of burdens of respecting balancing and the mitigating existence circumstances He mitigating aggravating argues circumstances. be
sentencing determinations under 413 must made on doubt, beyond basis of not on the basis of proof a reasonable *29 Tichnell’s preponderance position the evidence. supported by by an amicus brief filed the Public Defender.
730 Relying 358, on In re Winship, 397 90 U.S. S. Ct. 25 (1970), L. 2d Wilbur, Ed. and Mullaney 421 U.S. (1975), 95 S. Ct. 44 L. suggested Ed. 2d 508 it is that process due the requires prosecution to assume the burden of proving beyond a any reasonable doubt the absence of § mitigating circumstances enumerated in (g) that are by raised the phase accused in the penalty of trial. It is process contended that due requires also the State to assume beyond the burden of proving a reasonable doubt that the aggravating outweigh circumstances the mitigating circumstances.
Section specify 413 does not explicitly party which has the producing burden of evidence and the of persuasion. burden Instead, § speaks of requiring terms sentencing authority to findings satisfy make that either the reasonable doubt or preponderance standard; of evidence the section involves a three-step First, procedure. as a condition precedent imposition to the of the penalty, death sentencing authority beyond must find a reasonable doubt that at least one aggravating proved. circumstance has been (f). this, § 413 As to the State bears both the risk of nonproduction nonpersuasion. step requires second sentencing authority whether, by consider preponderance evidence, of a mitigating circumstance (g). exists. provision This require does not prosecution to disprove the existence of mitigation, thus placing on the accused risk of nonproduction and nonpersuasion. Finally, finds, if sentencing authority a preponderance evidence, the mitigating outweigh circumstances do not aggravating (h) circumstances, the death penalty imposed. § must be (2). Because the State is attempting to establish that imposition of the penalty appropriate sentence, death is an places statute of nonpersuasion risk on the prosecution respect aggravating whether the factors outweigh the mitigating factors.
We find nothing in Winship Mullaney justify process argument. Tichnell’s due In Winship, Supreme *30 which, adjudicatory in the procedure a invalidated Court required the proceedings, delinquency juvenile of stage only by a delinquency, but prove to prosecution The Court noted that: of evidence. preponderance " error, margin of litigation in a always is 'There which both factfinding, error representing party one account. Where must take into parties — transcending as of value has at an interest stake — margin this liberty his a criminal defendant placing process as to him the error is reduced * * * persuading party burden of on the other of his of the trial at the conclusion the factfinder process doubt. Due guilt beyond a reasonable liberty unless no man shall lose commands that * * * has burden of borne the Government ” U.S. at guilt.’ of his convincing the factfinder 364. in Winship to standard was referred
The reasonable doubt risk convictions reducing "prime as a instrument error,” process the due clause was resting on factual while except upon protect "against to the accused conviction said every necessary proof beyond a reasonable doubt fact he Id. at 363-64 charged.” constitute the crime with which is added). (emphasis required a which
Mullaney invalidated Maine statute prove by of the evidence preponderance defendant provocation murder in order to reduce the defense to that due manslaughter. process offense to The Court held beyond prove a reasonable requires prosecution clause is provocation properly doubt the absence of when the issue in a homicide case. raised argues
Tichnell Winship the rationale Mullaney applicable procedure to the death sentencing consequently may burden be him imposed no on imposition to establish circumstances sufficient to avoid the penalty. disagree. of the death We principles Winship, Mullaney, and in articulated 197, 97 York,
as later modified in Patterson v. New
432 U.S.
(1977),
require
S. Ct.
In
Court held that the defendant’s
Supreme
process
conviction of murder did not violate the due
clause
by requiring
prove by
preponderance
that he
*31
evidence the affirmative defense of extreme emotional
manslaughter.
in order to reduce the offense to
disturbance
that
this defense was
rejected
argument
Court
in
indistinguishable
provocation
from the
defense raised
Mullaney.
approving
The Court relied on the line of cases
insanity
of
of
on the
placement
persuasion
of the burden
S. Ct.
Oregon,
defendant. See Leland v.
U.S.
(1952).
It
The Court further noted that: does recognize mitigating
"To at all a circumstance in require prove not the State to its non-existence issue, if in its put each case in which the fact is cumbersome, too judgment this would be too expensive, and too inaccurate. adopt
"We to as a constitutional thus decline a imperative, operative countrywide, that State every doubt fact disprove beyond must a reasonable any all affirmative defenses constituting accused. an culpability related only required that Traditionally, process due has observed; safeguards procedural be the most basic balancing society’s against interests more subtle legislative left to the those of the accused have been branch.” Id. at 209-10. specified in persuasion think the burdens of
We that principles articulated 413 are in accordance with Patterson. Maryland’s constitutionality of support for the
Additional Gregg, determinations is found in Proffitt capital sentencing statutory Jurek. In schemes that these decisions upheld Eighth were and Fourteenth Amendments under require prosecution not federal constitution did beyond a prove mitigating absence of circumstances noteworthy except for reasonable doubt. It is also that Proffitt, statutory the statutes scheme considered explicitly require considered in cases not these did sentencing authority aggravating find outweighed mitigating circumstances circumstances scheme, prior to death. The Proffitt imposing sentence of however, specify did not either preponderance *32 The reasonable doubt standard for this determination. other statutes, Jurek, expressly not Gregg in did considered instead, merely required balancing process; they call for a if "be considered” mitigating circumstances sentencing authority existence found a reasonable proven beyond aggravating circumstances was specified in Maryland sentencing The determinations doubt. Gregg, Proffitt scrutiny § under plainly 413 withstand Jurek. jurisdictions considered the burdens of
Other that have § 413 similar to have persuasion statutory under a scheme prove require held that not the State process due does mitigating beyond doubt the absence reasonable Watson, 441, See, e.g., 120 Ariz. 586 circumstances. State v. denied, 924, 1253, 1258-259 (1978), cert. 440 U.S. 99 S. P.2d Pierre, 1254, (1979); 572 Ct. L. Ed. 2d State v. P.2d 59 478 734 (Utah denied, 882, 1977), 99
1338, 1346-348 cert. U.S. S. Barfield, (1978); State v. 219, 2d 194 Ct. 58 L. Ed. (1979); Johnson, 306, 510, State v. 259 S.E.2d 543-44 N.C. (1979). 597, statutory 47, 617-18 257 S.E.2d N.C. short, 413, complies requirements § in with the scheme of of the federal constitution. process the due clause
(C)
18, 1979,
offenses,
January
On
the date of Tichnell’s
Maryland capital penalty statute existed in its present form
(8)
exception.
(g)
§
with one
Subsection
was added to
ch.
July
521 of the Acts of 1979 and became effective on
1979, two months before Tichnell’s trial.
It directs the
sentencing authority
"Any
to consider:
other facts
which
jury or
specifically
writing
the court
sets forth in
that it finds
in
mitigating
provision
circumstances
the case.” This
§
added to 413 after the
Supreme Court’s decision
Lockett
Ohio,
(1978),
438 U.S.
98 S. Ct.
"that case, as a precluded considering not be from capital factor, any aspect of a defendant’s mitigating any of the circumstances of character or record proffers that the defendant as a basis for the offense (emphasis than death.” Id. at 604 a sentence less original). sentencing procedure
It that the death under is contended time the murder was committed was effect at the *33 subsequent under Lockett because the unconstitutional 413, §of prosecution of Tichnell under the amended version infirmities, ex post violated the previous the which cured Rights.19 Maryland Declaration clause facto without deciding that without Assuming (8), under (g) was unconstitutional of subsection addition ex post violate the Lockett, amendment did not the 1979 The constitutions. of the state and federal clauses facto Florida, 97 S. Ct. 432 U.S. in Dobbert v. Supreme Court (1977), penalty a death 2d 344 considered 53 L. Ed. time of the between the had been amended statute that trial, change that the and decided and the time of offense case, In that post an facto violation. did constitute ex not authority, statutory acting pursuant judge, trial the defendant be jury’s recommendation that overruled imprisonment, imposed and sentence to life sentenced held that the new statute effect Supreme Court death. trial, only right of an gave jury which at the time determination, ex post not an facto advisory did constitute pre-Furman in effect at the time when the statute violation required imposition were committed offenses mercy. In penalty jury unless recommended death law, facto the Court defining post characteristics of an ex noted
"
any
punishes
'that
statute which
as a crime an act
committed,
innocent when
which was
previously
done; which makes more
burdensome
commission,
crime,
or
for a
after its
punishment
any
charged
crime of
deprives one
with
which
when
according to law at the time
defense available
committed,
ex post
prohibited
the act was
”
facto.’
The Court found ex facto because only procedural changes the statute were argument of the defendant Responding ameliorative. to the provides: 19. Article 17 Laws, retrospective punishing "That acts committed before the Laws, criminal, only existence of such oppressive, declared are them wherefore, unjust liberty; incompatible no ex ought made; post any retrospective Law to be or facto nor oath imposed, required.” restriction be *34 736 penalty
that no valid death statute was in effect at the time committed, the crime was the Court stated: sophistic argument "[T]his mocks the substance of the Ex Post Facto Clause. Whether or not the old would, future, statute withstand attack, clearly it constitutional indicated Florida’s severity murder degree view of the and of the of punishment legislature which the impose wished to upon murderers. The statute was intended to deterrence, provide maximum and its existence on provided warning the statute books fair as to the degree culpability which the State ascribed to the act of murder.
". . . Here the existence of the statute served an fact’ to warn 'operative petitioner penalty which Florida seek on him impose would if he This first-degree were convicted of murder. the ex facto compliance post was sufficient provision of the Constitution.” 432 United States at 297-98. U.S.
Although undisputed it is that Dobbert renders meritless clause, an argument post based on the federal ex facto argument Maryland made is nevertheless prohibition post applicable. on ex facto laws is Article 17 of Maryland Rights parallels Declaration of the federal clause, Ball, 386, 389,1 648, see Calder Dall. 650 v. 3 L. Ed. (1798); Elliott, 357, (1873); Lynn Elliott v. 38 Md. 362 v. State, 67, 78, (1896),20 84 Md. 21 Supreme 35 A. and the Court’s interpretation post of the federal ex facto clause is persuasive authority. clause,” construing Virginia’s legislatively post In 20. enacted facto "ex Virginia Supreme authority uphold Court viewed Dobbert as a death sentence for a crime committed before the death effective date of the state penalty Commonwealth, statute. Smith 219 Va. 248 S.E.2d (1979). denied,
(1978),.
cert.
2d 1074
L. Ed.
U.S.
99 S. Ct.
(state
(Tenn. 1979)
Contra,
State,
Miller v.
Furthermore, addition of subsection assuming that the (8) Lockett, change did not comply to with the necessary onerous, the but instead afforded more make the statute Moreover, safeguards. repeat we new significant defendant in Dobbert that the Supreme the Court of the observation degree culpability of warning as to the had fair defendant think it the of murder. We ascribes to act Maryland which Rights of Maryland 17 the Declaration that Article clear in this case. was not violated
(D) Maryland It that Article of the is next contended arbitrary to permits jury reach Rights Declaration in violation of the constitutional decisions sentencing provides requirements Georgia, supra. Article 23 Gregg v. in pertinent part: cases, shall Jury
"In of all criminal the the trial Law, fact, except as well as of that Judges be the sufficiency may upon the of the pass the Court a conviction.” evidence to sustain constitutional implements Rule 757 b this
Maryland provision requires: to every given
"In case in which instructions are they are jury jury the court shall instruct judges of the law and that court’s advisory only.” instructions are argued may right argue
It is a matter of that counsel instructions, contrary to the see jury position court’s (1976); State, 571, 581, 357 A.2d
Dillon v.
277 Md.
(1965);
State, 239 Md.
245, 255,
A.2d 824
Wilson
(1955),
State,
15, 21-22,
(E) (e) death that, reviewing the requires Section (1) whether Tichnell, determine we upon imposed sentence passion, influence of under the imposed the sentence was (2) factor; the arbitrary whether any other or prejudice, statutory of a finding the sentencer’s supports evidence (3) the evidence circumstance; whether aggravating aggravating finding the sentencer’s supports circumstances; and mitigating outweigh circumstances finally or is excessive
"(4) of death the sentence Whether in similar imposed penalty the disproportionate the and crime the considering both cases, defendant.” (e) appellate patterned after the appears
Section
be
statute
Georgia
penalty
of the
death
provision
review
(1976).21
Given
(4)
(e)
§ 414
and the sentence
provision of
proportionality
Gregg,
Georgia provision
provision approved
review
for our review determinations.
may
guideline
be utilized as
(also
to as the
provision
review
referred
proportionality
clause),
by
Georgia
interpreted
review
comparative
Court,
of a death
requires
setting
aside
Supreme
"
for an act or
'rarely imposed
if it is
sentence as excessive
imposed for
substantially out of line with sentences
it is
”
612,
State,
231 Ga.
204 S.E.2d
Coley
other
acts.’
(1974).
Georgia Supreme
this
provision,
Under
may
that a death sentence in a murder case
Court has held
only
juries
throughout
if
the state
generally
be affirmed
penalty
the death
for that kind of offense.
imposed
have
(1975).
State,
As
234 Ga.
216 S.E.2d
Jarrell v.
provision
in Gregg,
proportionality
summarized
review
Georgia statute
"substantially
possibility
eliminates
of an
be sentenced to die
the action
person will
jury.
juries generally
If a time comes when
aberrant
kind
do not
the death sentence in a certain
impose
sentence,
considering
appropriateness
Supreme
21. In
of death
Georgia is directed to
Court of
consider:
" '(1)
imposed under the
Whether the sentence of death was
factor,
passion, prejudice,
any
arbitrary
influence
or
other
'(2)
jury’s
judge’s
supports
.
.
Whether
.
the evidence
or
...,
finding
statutory aggravating
of a
circumstance
'(3)
Whether
sentence
of death
excessive
cases,
disproportionate
penalty imposed
to the
in similar
*37
considering both the crime and the defendant.’”
Further
into
(e)
may
gained
§ 414
be
necessity
provisions
of the
in
upheld
procedures
review
examining
appellate
Florida,
at
Jurek
supra,
U.S.
Proffitt v.
that the
Texas,
These decisions reveal
supra,
" '[guarantee] [aggravating mitigating] present reasons one case will reach a similar result to that reached under similar If circumstances another case.... a defendant is die, sentenced to this Court can review that case in light and determine whether other decisions ” or not 428 U.S. at punishment great.’ is too (Fla. Dixon, citing State v. 283 So. 2d 1973). Texas, upheld supra, Texas statute in Jurek v. 262, provided
U.S. appeal, for an automatic but also lacked an express provision for The Court proportionality review. subject nevertheless assumed that death sentences were type review, this stating:
"By jury’s providing prompt judicial review of the jurisdiction, decision in a court with statewide Texas a means to provided promote has evenhanded, rational, imposition and consistent system death under this sentences law. Because of death will not be serves to assure sentences
741 'freakishly’ it does not 'wantonly’ imposed, or 428 at 276. U.S. violate the Constitution.” the varieties of underlying principle essential Proffitt, in and Jurek upheld Gregg, review proportionality short, will be is, that death sentences guarantee in People See v. reasonably in a consistent manner. imposed (1979). 281, 587, 610 Frierson, 599 P.2d Rptr. 158 Cal. mind, to question arises as principles
With these (4) (e) § 414 whether are to under how we determine to the disproportionate or Tichnell’s sentence "is excessive cases, considering the crime both imposed in similar penalty Because this is (Emphasis supplied.) and the defendant.” 1978 death penalty to reach for review under the first case us statute, presented are with an dilemma of how apparent we comparative of similar cases. On proceed review hand, we, finding if necessity the one out of similar case, cases decided under compare Tichnell’s sentence with pre-Furman pre- Gregg infirm constitutionally statutes, comparison we our cases thereby use as basis of if may imposed they in which life have had sentences been present been decided under the statute. Cases tried under Maryland gave sentencing authority previous statutes deciding imprisonment unbridled life discretion whether or death was the The other appropriate punishment. horn the dilemma is if no under similar cases exist either the statutes, past complete then it is present impossible (e) (4). §by review mandated 414 ways
There are conclusion that the several avoid the (e) (4) § 414 comparative review can sentence mandated implemented. approach, never be The first sanctioned Gregg, pr is to cases in cautiously employ e-Furman comparative recognized review examination. That case practice necessity inception this a matter of at the of a new sentencing n. 56. procedure. 428 at 204 Several U.S. State, states have approach. followed this See Jacobs v. 361 (Ala. 640, 1978), denied, 1122, So. 2d 439 644-45 cert. U.S. 1034, State, (1979); 99 S. Ct. L. Ed. 2d 83 v. 59 Ross 233 Ga. 361, 211 356, (1974); State, S.E.2d 360 v. 601 P.2d Deutscher
742 (Nev. Miss., 2d State, 360 So. 1979);
407,
Bell v.
419
950,
1433,
99 Ct.
(1978),
denied, 440 U.S.
S.
1206, 1214
cert.
Com.,
(1979);
219 Va.
2d
Smith
L. Ed.
967, 99 S. Ct.
(1978),
denied, 441 U.S.
cert.
S.E.2d
(1979).
restricted
states have
Other
L. Ed. 2d 1074
decided
under
to cases
comparison
scope of
See
penalty
statutes.
constitutionally
death
approved
*39
122,
106,
195,
cert.
State,
548 S.W.2d
261 Ark.
v.
Collins
(1977);
2d
231,
L. Ed.
158
878,
S. Ct.
54
denied, 434
98
U.S.
(Del.
1978);
1082,
Supr.
White,
A.2d
1095-96
395
v.
State
(La. 1979);
v.
300,
State
Martin,
2d
312-13
376 So.
v.
State
denied,
881, 890, cert.
549,
N.W.2d
Simants,
250
197 Neb.
(1977); State v.
231,
2d
878,
L. Ed.
158
S. Ct.
54
434 U.S.
98
957,
799,
(1979), 444 U.S.
Shaw, S.C.,
807
255 S.E.2d
Furthermore, most states
2d
437,
L. Ed.
329.22
S. Ct.
62
100
to
decided
cases
cases
of similar
restrict
their consideration
State,
See,
supra,
v.
e.g., Collins
state law.
under their own
1096;
White,
A.2d at
122;
supra,
v.
395
State
548 S.W.2d at
(1975),
829, 833
861, 213
cert.
State,
S.E.2d
233
Moore v.
Ga.
(1976);
2d 1218
910, 96
3222, 49 L. Ed.
S. Ct.
denied, 428 U.S.
Shaw,
418;
v.
State,
P.2d at
State
supra, 601
Deutscher v.
243,
Com.,
257
807;
220 Va.
Coppola
at
v.
supra, 255 S.E.2d
Com.,
Virginia Supreme
recognized
supra, the
that
22. In
Court
Smith y.
constitutionally
capital
definitionally
prior
involved
defective statutes
cases tried under
affirming
under the
a death sentence
different offenses. In
court, nevertheless,
statute,
apparently relied on a
the
new 1977
comparison
decades.
imposed
the
from
sentences
over
course
seven
drawn
death
State, supra,
Supreme
the
Court
An alternative
requires
system
of review that
simply
recognize
a beginning.
must have
similar cases
comparison
reviewing
Shaw,
approach,
Under this
supra.
State v.
the new
first case under
recognized
court has
cases that
statutory
compared
be
similar
scheme cannot
view, the
the statute. Under this
have been decided under
itself,
comparative
otherwise
review
case must stand
first
—
with the
at odds
impossible
would be
determination
body
to enact
does not intend
presumption
legislative
that a
See, e.g.,
inoperative statute.
Swarthmore
an ineffective and
(1970);
517, 525,
Kaestner, 258 Md.
It sentencing was jury determination of Tichnell’s waiver of Pollitt’s belief, generated by Judge actually based on sentence if he remark, impose the death that he would not he was authority. Tichnell claims that sentencing was by it in Judge remark and was influenced advised of Pollitt’s sentencing authority. affidavit selecting him as the by Attorney attesting Judge to the words said the State’s detracts, from than Tichnell’s supports, Pollitt rather least, the remark. At the remark import version of the impression Judge subject to the ambiguous which deserved Pollitt did not think that the case one Pollitt’s Notwithstanding Judge penalty. death think, in the said, contrary we recollection of what he circumstances, imposition the death sentence was (e) (1), § 414 "arbitrary factor” under influenced an remanded for be set aside and the case requiring it may, at sentencing proceeding new under 413. Tichnell *41 available resentencing hearing, options exercise as the jury judge § either a or a him under 413 and elect latter, judge choose the authority. Should he sentencing so if preside, Tichnell Pollitt should Judge other than requests.24 affirmed, as to except
Judgments the death imposition vacated sentence; sentence death the Circuit remanded to and case County for a Wicomico Court for under sentencing proceeding new 27; pay party § each 413 of Art. costs. own
Cole, J., concurring: no result, my opinion, being,
I in the there concur in the case. the constitutional issues necessity to reach J., Davidson, concurring: result.
I concur required judge report post-sentence to be the trial under 24. In the filed Fairmont, 772A, according Judge West Pollitt indicated that to a Rule Virginia police report, he would November 1977 "that Tichnell said on disputed cop’ ofthis 'kill a the next time arrested.” Tichnell the authenticity supported by police report position affidavit an notation on the of resentencing hearing, the Chief of Fairmont. At Tichnell’s the Police wishes, may, any evidence "that the court deems of State if it adduce sentence, probative provided the defendant is value and relevant (c) (v) any Art. opportunity accorded fair 27. to rebut statements.”