Borchardt v. State

• Decision Date: 13 December 2001
• Docket Number: No. 55,55
• Citation: 786 A.2d 631,367 Md. 91
• Parties: Lawrence Michael BORCHARDT v. STATE of Maryland.
• Court: Maryland Court of Appeals

786 A.2d 631

367 Md. 91

Lawrence Michael BORCHARDT v. STATE of Maryland.

No. 55, Sept. Term, 2000.

Court of Appeals of Maryland.

December 13, 2001.

Reconsideration Denied January 4, 2002.

Argued by Fred Warren Bennett (Michael E. Lawlor of Bennett & Nathans, LLP, Greenbelt, on brief, Arcangelo M. Tuminelli, Baltimore, on brief), for appellant.

Argued by Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore for appellee.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ. WILNER, Judge.

In May, 2000, appellant, Lawrence Borchardt, Sr. was convicted by a jury in the Circuit Court for Anne Arundel County of two counts each of premeditated first degree murder, first degree felony murder, and robbery with a deadly weapon. Those convictions emanated from the murder and robbery of Joseph and Bernice Ohler in their home in Baltimore County on November 26, 1998.¹ After a separate sentencing hearing, the jury imposed sentences of death for the murders of Mr. and Ms. Ohler. The court added a consecutive 20-year sentence for the armed robbery of Joseph Ohler and a concurrent 20-year sentence for the armed robbery of Bernice Ohler. In this appeal, Borchardt makes 10 complaints. We perceive no reversible error and shall therefore affirm the judgments of the Circuit Court.

BACKGROUND

The evidence presented at trial was largely uncontradicted and was more than adequate to show that, in the course of a robbery, Borchardt murdered Mr. and Ms. Ohler. Borchardt and his girlfriend, Jeanne Cascio, lived about a mile from the Ohlers, along with Borchardt's son and the son's girlfriend, Tammy Ent. In order to help support his addiction to heroin, Borchardt, who was unemployed, would go door-to-door in the Golden Ring area of Baltimore County with Cascio, portraying her as cancer-afflicted and seeking donations to help pay for her treatment. On two previous occasions, Borchardt had been to the Ohler home, and Mr. Ohler had given him some money. On one occasion, Mr. Ohler drove Borchardt to a pharmacy, supposedly to pick up a prescription; in fact, Borchardt made a drug buy.

Mr. Ohler's body was discovered in his backyard on Thanksgiving night, November 26, by a neighbor. When the police arrived, they found Ms. Ohler's body inside the house. Both had died of multiple stab wounds. Also found in the house was a promissory note for $60 from Borchardt to Mr. Ohler, a social security card and a State welfare card in the name of Cascio, the handle of a knife, and jewelry scattered on the floor. A block away, the police found Mr. Ohler's wallet, along with keys, business and credit cards, a bloody coat, and bloody leather gloves, the left one showing a slice on the ring finger. After visiting Borchardt's apartment and speaking with his son, the police obtained arrest warrants for Borchardt and Cascio and a search warrant for Borchardt's apartment. In executing the search warrant, the police seized several bloody rags.

Borchardt and Cascio were arrested the next day, November 27. Borchardt had a cut on his left ring finger that corresponded to the slice found on the glove. He declined to talk with the police that day, claiming that he was suffering from drug withdrawal, but said that he would call them when he was ready to talk. He did so on December 9ÔÇötwelve days laterÔÇöat which time, after being advised of his rights, he gave a seven-page written statement confessing to the murders. In that statement, Borchardt acknowledged that he needed money to buy drugs, that he went to the Ohler home and was admitted inside by Ms. Ohler, that he asked for $40 and was refused, that he then asked Ms. Ohler for some water and, while she was in the kitchen getting it, he took out his folding knife and stabbed Mr. Ohler five times, three times in the stomach and twice in the chest, that Ohler tried to escape but Borchardt knew he would not get far because of the way he was cutÔÇöhis intestines were hanging out, that Borchardt then opened the desk in the hallway where he knew Mr. Ohler kept his wallet, that Ms. Ohler ran in and said that she had called the police, whereupon he stabbed her three times, aiming for the heart, that Mr. Ohler managed to get out of the door, and that Borchardt then left with the wallet, took $11 from it, and discarded the cards and keys. Borchardt added that, though wearing his fur-lined leather gloves, he had cut his finger with the knife and that he discarded the gloves as well. In addition to the written statement, Borchardt told the detectives that "he has a taste of blood now and he wants to keep killing whether it be inside or outside jail."

Borchardt's son confirmed that his father was unemployed and got money by asking for donations, using a collection box with Cascio's picture. He stated that, on Thanksgiving Day, Borchardt and Cascio left their home together, to "hustle money for some more [drugs]," and that they returned about 20 minutes later. After Cascio bandaged Borchardt's finger, they left the apartment because, according to Borchardt, he "had to stab a couple of people." The son identified the knife handle found in the Ohler home as part of one of Borchardt's knives. Several of the Ohlers' neighbors identified Borchardt as having come to their homes soliciting money on behalf of a woman needing treatment for cancer. Finally, DNA testing disclosed that Joseph Ohler could not be excluded as the source of blood found on Borchardt's jacket and shoes, although Borchardt, Cascio, and Ms. Ohler were excluded as the source. Borchardt, on the other hand, could not be excluded as the source of blood on the gloves found a block from the Ohler home, whereas the Ohlers and Cascio were excluded as sources. One fingerprint found at the scene of the murders that was suitable for comparison was identified as that of Borchardt.

We shall recite other relevant facts in our discussion of the issues raised by Borchardt.

DISCUSSION

Constitutionality of Death Penalty Law in Light of Apprendi v. New Jersey²

(1) The Maryland Capital Punishment Law

Maryland Code, Article 27, ž 412(b) provides that a person who is convicted of murder in the first degree and, at the time of the murder was at least 18 years old and not mentally retarded, "shall be sentenced to death, imprisonment for life, or imprisonment for life without the possibility of parole." Section 412(b) states further that the sentence shall be imprisonment for life unless (1) at least 30 days prior to trial the State notified the defendant that it intends to seek the death penalty and identified each aggravating circumstance upon which it intends to rely, and a sentence of death is imposed in accordance with ž 413, or (2) at least 30 days prior to trial, the State notified the defendant that it intends to seek a sentence of imprisonment for life without parole.

Section 413 requires that, if the defendant is convicted of murder in the first degree and the State has given the requisite notice, a separate sentencing proceeding shall be held to determine whether the defendant shall be sentenced to death. That proceeding is to be conducted before (1) the jury that determined the defendant's guilt, (2) a jury impaneled for the purpose if (i) the defendant was convicted on a plea of guilty, (ii) the defendant was convicted by the court sitting without a jury, (iii) the jury that determined the defendant's guilt has been discharged for good cause, or (iv) review of an earlier sentence of death has resulted in a remand for resentencing, or (3) the court, without a jury, if a jury proceeding is waived by the defendant. As Borchardt was sentenced by a juryÔÇöthe one that convicted himÔÇöwe shall refer to the sentencing tribunal as a jury, although, as noted, it may in other cases be a judge.

Section 413(d) lists 10 aggravating circumstances, any of which, if shown beyond a reasonable doubt to exist, may make a defendant potentially eligible for the death penalty. It is only those circumstances that the State had notified the defendant it intends to rely on that may actually be considered by the jury, however. The jury's first task under ž 413(d), therefore, is to consider whether any of those circumstances relied upon by the State exist, beyond a reasonable doubt. In this instance, the State relied upon two such factorsÔÇöthat Borchardt committed more than one offense of murder in the first degree arising out of the same incident (No. 9), and that he committed the murders while committing or attempting to commit robbery (No. 10). Reliance on those circumstances also required the sentencing jury to determine, beyond a reasonable doubt, that Borchardt was a principal in the first degree. See ž 413(e)(1)(i). If the jury does not find, beyond a reasonable doubt, that one or more of the enumerated aggravating circumstances exist, it must state that conclusion in writing, in which event a sentence of death may not be imposed. See ž 413(f). If, on the other hand, the jury finds that one or more of those aggravating circumstances do exist, it must then consider and determine, by a preponderance of the evidence, whether there exist any of seven enumerated mitigating circumstances or "[a]ny other facts which the jury ... specifically sets forth in writing that it finds as mitigating circumstances in the case." ž 413(g). By case law, we have construed that eighth, catch-all, factor to include "`anything relating to the defendant or to the crime which causes [the jury or any of its individual members] to believe that death may not be appropriate.'" Ware v. State, 360 Md. 650, 690, 759 A.2d 764, 785 (2000), cert. denied, 531 U.S. 1115, 121 S.Ct. 864, 148 L.Ed.2d 776 (2001) (quoting Harris v. State, 312 Md. 225, 253, 539 A.2d 637, 651 (1988), quoting, in turn, Mills v. State, 310 Md. 33, 51, 527 A.2d 3, 11 (1987), judgment vacated on other grounds, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)...