State v. Tichnell

Decision Date01 September 1985
Docket NumberNo. 52,52
Citation509 A.2d 1179,306 Md. 428
PartiesSTATE of Maryland v. Richard Danny TICHNELL. ,
CourtMaryland Court of Appeals

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellant.

Robert L. Morin (Joseph P. Suntum and Thomas L. Heeney, on brief), Rockville, for appellee.


MURPHY, Chief Judge.

On August 23, 1979, Richard Danny Tichnell was found guilty by a jury of the wilful, deliberate and premeditated first degree murder of Deputy Sheriff David Livengood. The State sought imposition of the death penalty under Maryland's capital punishment statute, Maryland Code (1957, 1982 Repl.Vol., 1985 Cum.Supp.), Article 27, §§ 412-414, inclusive. Tichnell elected to have the trial judge decide whether the death penalty should be imposed, and the court sentenced him to death. We affirmed the murder conviction on appeal but vacated the death sentence on the ground that it had been imposed under the influence of an "arbitrary factor" in violation of Art. 27, § 414(e)(1). Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980) (Tichnell I). On remand for a new sentencing hearing, Tichnell elected to have a jury determine whether the death penalty should be imposed upon him. The jury concluded that death was the appropriate penalty, and on appeal we again vacated the death sentence and remanded for a new sentencing hearing because the trial judge committed reversible error in admitting certain prior recorded trial testimony in evidence over Tichnell's objection. Tichnell v. State, 290 Md. 43, 427 A.2d 991 (1981) (Tichnell II ). At his third capital sentencing hearing, Tichnell again elected to be sentenced by a jury. The jury imposed the death penalty and on appeal we affirmed. Tichnell v. State, 297 Md. 432, 468 A.2d 1 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984) (Tichnell III ).

Tichnell then filed a petition for post conviction relief in the Circuit Court for Calvert County, pursuant to the Uniform Post Conviction Procedure Act, Maryland Code (1957, 1982 Repl.Vol., 1985 Cum.Supp.), Art. 27, §§ 645A through J. In his petition, Tichnell raised fifteen claims for relief, asking for both a new trial on the merits and a new sentencing hearing. The court (Melbourne, J.) denied relief on fourteen claims but granted Tichnell a new sentencing hearing on his claim that he did not receive effective assistance of counsel during the third sentencing procedure. We granted the State's application for leave to appeal from the court's order granting Tichnell a new sentencing hearing. We also granted Tichnell's application for leave to appeal from the court's order denying relief on all of the other grounds asserted in the petition.


At the outset of the post conviction hearing before Judge Melbourne, the transcripts and exhibits in each of the prior Tichnell cases were received in evidence. They disclosed that at approximately 5:25 a.m. on January 18, 1979 Tichnell and a confederate, Oscar Recek, broke into Davidson's store in Oakland, Maryland, for the purpose of stealing some handguns. At that time a silent alarm sounded in the nearby sheriff's office and Deputy Sheriff David Livengood, accompanied by a K-9 dog, immediately drove to the scene. Officer Roger Lewis of the Oakland Police Department also responded.

Officer Lewis arrived at the store at approximately 5:27 a.m. The store was located between parallel Routes 219 and 4, having its entrance on Route 219 and its rear door 252 feet from Route 4. Lewis noticed that the front door of the store had been broken open and he entered the store a minute or so after he arrived. Between 5:28 a.m. and 5:31 a.m., Deputy Livengood contacted Officer Lewis by police radio. He asked Lewis to remain in his car in front of the store and told him that he was proceeding to investigate a "suspect vehicle" located behind the store.

James Wolfe, whose house overlooks Route 4, was leaving for work between 5:30 and 5:35 a.m. when he heard some yelling on the road. From approximately 460 feet away, he observed a car facing north, stopped on Route 4, with its headlights on and a dog pacing back and forth in front of the headlights. After about 10 seconds the dog disappeared, and 15 seconds later Wolfe heard a burst of shots, followed by a split second pause and then the sound of tires spinning coupled with a simultaneous second burst of shots. Wolfe then saw a faint vision of a second car, without headlights, move in a southerly direction on Route 4 about 20 to 30 feet after which he heard a "thump." Wolfe went into his house and called the sheriff's office at about 5:37 a.m. After a few minutes, Wolfe noticed a vehicle with headlights leave the area. At 5:50 a.m., Wolfe drove on Route 4 behind Davidson's store and observed Deputy Livengood lying facedown at the edge of the northbound lane. He promptly notified the sheriff's office and Officer Lewis, who had remained at the front of the store as instructed, and others immediately responded.

Deputy Livengood had been shot seven times and was dead. His service revolver with three live and three spent cartridges was located under his body. A pair of handcuffs was found on the road about 23 feet from Livengood's body. The deputy's police cruiser was missing. His K-9 dog was lying off the road about 26 feet from Livengood's body. The dog had been stabbed in the left shoulder region; it died shortly thereafter. A car belonging to Tichnell was found in a snow-filled ditch partially off of Route 4 facing south about 40 feet from the deputy's body. Two bullet holes were observed in Tichnell's car, one at the left front door near the door lock and the other at the left front area of the doorpost. A 9 millimeter Browning semiautomatic pistol belonging to Tichnell, and later identified as the murder weapon, was found in the front seat of Tichnell's abandoned car. The gun contained seven empty shells and seven loaded cartridges. Two of the spent cartridges were found on the floor of Tichnell's car behind the driver's seat. The other five casings were found scattered on Route 4 in a cluster near Livengood's body.

Tichnell and Recek were arrested later that morning in West Virginia. They were driving a vehicle which Tichnell had commandeered after wrecking the deputy's cruiser in the course of their flight from the scene of the shooting. A bag containing guns stolen from Davidson's store and a samurai sword with dog blood and hair on it were found in the vehicle. Also in the car was a shoulder holster capable of holding a Browning semiautomatic pistol. The holster was stained with blood of a type matching Tichnell's. Tichnell had a gun shot wound in his right shoulder, a laceration over his right eye and a crushed tooth.

On the evening of his arrest, Tichnell gave the West Virginia State Police a statement admitting that he and Recek had broken into Davidson's store and stolen guns. He said that they were in the store about 3 to 5 minutes and were returning to their car when Recek said that he had lost a loaded .38 Smith and Wesson revolver which Tichnell had given him just before they broke into the store. Since this was the same gun that Tichnell had stolen 3 days earlier from Davidson's store and had his fingerprints on it, Tichnell directed Recek to go back and find it. To avoid detection in the interim, Tichnell said that he drove around the Oakland area to give Recek time to find the lost gun. Tichnell told the police that he returned to Route 4, moving in a southerly direction, to pick up Recek when Tichnell saw a police cruiser facing north blocking his lane. At this moment, Tichnell said that his car headlights, which had been defective for some time, went out. He observed that the officer, gun in hand, had apprehended Recek and had him lying on the ground. Tichnell said he stopped his car about 15 to 20 feet from the police car and got out to repair his headlights. At this time, the officer pointed his weapon at him and told him to lie down on the road. Tichnell complied and he heard the deputy order his K-9 dog to watch him. The dog stood over Tichnell and as he looked up the dog bit him on the side of his eye and through the inside of his mouth. Tichnell said that he screamed out with pain, became hysterical, and started running around in circles to avoid the dog. Since he believed the dog had torn his eye out, Tichnell ran to his car to get a medical kit which he kept in the back seat.

At this point Tichnell heard the deputy order the dog to watch Recek and the deputy followed Tichnell to his car, spun him around and placed a gun in his face. The door on the driver's side of Tichnell's two-door car was open. Tichnell said he moved the deputy's weapon from his face and requested that he be allowed to tend to his wounded eye. The deputy put his gun against Tichnell's shoulder and shot him from a distance of about a foot and a half. Tichnell said that the shot knocked him into his car and that he grabbed the barrel of the deputy's gun as he fell. While still holding the deputy's gun, Tichnell said he reached for his own gun which he kept under the front seat. As the scuffle continued, the deputy fired again, the bullet narrowly missing the top of Tichnell's head. Tichnell explained that because he thought the deputy was going to shoot him again, he fired four to five shots at the deputy at point-blank range. He said that the first shot struck the deputy in the head, and he was certain that he was dead.

Tichnell acknowledged in his statement that he and Recek attempted to leave the scene in Tichnell's car. After moving about 30 or 40 feet, Tichnell said that the car slid on the ice and went off the road and into a ditch. He then decided to take the deputy's cruiser, but found the dog sitting in the front seat. As Recek attempted to get in the...

To continue reading

Request your trial
56 cases
  • Scott v. State
    • United States
    • Court of Appeals of Maryland
    • September 1, 1985
    ...instruction which is inconsistent with or disregards the statutorily required weighing process is properly denied. State v. Tichnell, 306 Md. 428, 467-468, 509 A.2d 1179, cert. denied, --- U.S. ----, 107 S.Ct. 598, 93 L.Ed.2d 598 An examination of Scott's Proposed Instructions Nos. 11 and 1......
  • Hunt v. State
    • United States
    • Court of Appeals of Maryland
    • December 28, 1990
    ...the aggravating circumstances outweigh the mitigating circumstances. We rejected a similar contention in State v. Tichnell, 306 Md. 428, 467, 509 A.2d 1179, 1199 (1986) (Tichnell IV ); accord State v. Calhoun, 306 Md. at 739, 511 A.2d at The Supreme Court addressed this issue recently in Bl......
  • Jones v. State
    • United States
    • Court of Appeals of Maryland
    • September 16, 1987
    ...2633, 86 L.Ed.2d 231 (1985); Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). See also State v. Tichnell, 306 Md. 428, 509 A.2d 1179 (1986). By way of illustration, in Caldwell v. Mississippi, supra, reversal was required where the prosecution told the jury tha......
  • Bowers v. State
    • United States
    • Court of Appeals of Maryland
    • September 4, 1990
    ...adequate assistance and made all significant decisions in the exercise of reasonable professional judgment...." State v. Tichnell, 306 Md. 428, 456, 509 A.2d 1179, 1193, cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986). That "presumption is not undermined by the fact that th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT