Tichnell v. State

• Decision Date: 10 June 1980
• Docket Number: 104,Nos. 73,s. 73
• Citation: 415 A.2d 830,287 Md. 695
• Parties: Richard Danny TICHNELL v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 695

287 Md. 695

415 A.2d 830

Richard Danny TICHNELL v. STATE of Maryland.

Nos. 73, 104.

Court of Appeals of Maryland.

June 10, 1980.

Clark B. Frame, Morgantown, W.Va. (G. Gary Hanna, Cumberland, on brief), for appellant.

George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, and Thomas J. Saunders, Asst. Public Defender, Baltimore, on brief), for amicus curiae.

Stephen H. Sachs, Atty. Gen., and Deborah K. Handel, Asst. Atty. Gen., Baltimore, for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

MURPHY, Chief Judge.

In the early morning hours of January 18, 1979, Richard Tichnell and a confederate, Oscar Recek, broke into Davidson's Army-Navy Surplus Store near Oakland, Garrett County, Maryland, and stole ten handguns. Within minutes after leaving the store, Tichnell was accosted by Deputy Sheriff David Livengood, who had been dispatched to the scene in response to a silent alarm activated by the storehouse breaking. In the course of their encounter, Tichnell shot and killed the deputy. Thereafter, Recek and Tichnell took Deputy Livengood's police cruiser and fled the scene. They were apprehended later that morning in West Virginia. At that time Tichnell admitted to the police that he had shot Deputy Livengood, but he said the shooting was not premeditated and was in justifiable self-defense.

On March 2, 1979, the grand jury of Garrett County charged Tichnell in one indictment with the felonious storehouse breaking of Davidson's store, and with grand larceny of the ten handguns. ¹ Another indictment charged Tichnell with the premeditated first degree murder of Deputy Livengood, with felony murder, with murder in the second degree, with manslaughter, and with using a handgun in the commission of a crime of violence. ² A third indictment charged Tichnell with robbing Deputy Livengood with a deadly weapon and stealing his vehicle, with grand larceny of the deputy's police cruiser, and with a handgun violation.

Upon Tichnell's request for a change of venue, the cases were removed to the Circuit Court of Wicomico County. The three indictments were consolidated for trial by jury before Judge Richard M. Pollitt. Pursuant to Maryland Code (1957, 1976 Repl.Vol., 1979 Cum.Supp.), Art. 27, § 412(b), Tichnell was given timely notice that the State would seek the imposition of the death sentence for the murder of the deputy sheriff.

At the conclusion of the trial on August 23, 1979, the jury found Tichnell guilty of the wilful, deliberate and premeditated murder of Deputy Livengood. It also found him guilty of storehouse breaking, grand larceny of the guns, and unauthorized use of the deputy's vehicle. After Tichnell waived his statutory right to have a jury determine whether he should be sentence to death on the murder conviction (see Code, Art. 27, § 413), the court imposed the death sentence. Additionally, it imposed terms of imprisonment for the storehouse breaking and grand larceny offenses.

On appeal, Tichnell claims that the court committed numerous prejudicial errors in the course of the pretrial and trial proceedings. He contends that the evidence was legally insufficient to permit the jury to convict him of wilful, deliberate and premeditated murder. He also attacks the constitutionality of Maryland's capital sentencing statute, as well as the imposition of the death sentence in the circumstances of the case.

I.

At the trial, the State adduced evidence that on January 18, 1979, at approximately 5:25 a. m. an alarm sounded in the Garrett County Central Alarm office, indicating that a break-in had occurred at Davidson's store located on the outskirts of Oakland. Deputy Livengood was immediately notified and drove to the store, accompanied by Sarge, his 108-pound German Shepherd K-9 dog. Officer Roger Lewis of the Oakland Police Department was also alerted, and he too drove to the scene.

The evidence showed that Davidson's store is located between Routes 219 and 4, being approximately equidistant to each road. The two routes parallel each other in a north-south direction. The front of the store is on the Route 219 side. Route 4 is a two-lane road; it is approximately 252 feet from the rear of the store. There is no automobile entrance to the store from Route 4.

Officer Lewis arrived in the front of the store at approximately 5:27 a. m. It was quite windy and light snow was falling; ice and snow covered the ground. Lewis noted that the front door of the store had been broken open, and a minute or so later he entered the store. Sometime between 5:28 a. m. and 5:31 a. m. Deputy Livengood contacted Officer Lewis by police radio, advising him that he was proceeding to investigate a "suspect vehicle." He told Lewis to remain in his car in front of the store.

Between 5:30 and 5:35 a. m., James Wolfe, whose house overlooks Route 4 immediately behind Davidson's store, was leaving for work when he heard some yelling on the road. From a distance of approximately 460 feet, he observed a car, facing north, stopped on Route 4 with its headlights on, and a dog pacing back and forth in front of the headlights. After about ten seconds the dog disappeared, and fifteen seconds later Wolfe heard a burst of shots, followed by a split second pause, the sound of tires spinning and a 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 twenty to thirty feet, after which he heard a "thump." Wolfe went into his house and called the sheriff's office; the time was then about 5:37 a. m. A few minutes later, Wolfe noticed the vehicle with the headlights leave the area. At 5:50 a. m., Wolfe drove on Route 4 behind Davidson's store and observed Deputy Livengood lying facedown at the edge of the northbound lane of the road. Wolfe promptly notified the sheriff's office and Officer Lewis and others immediately responded to the scene. ³

Deputy Livengood had been shot seven times and was dead. His .38 caliber service revolver with three live and three spent cartridges was located beneath his body. A pair of handcuffs was found in the road about twenty-three feet from the deputy's body. Livengood's police cruiser was missing. His K-9 dog, Sarge, had been stabbed in the left shoulder region and his tongue had been deeply cut. The dog was lying off the road about twenty-six feet from the deputy's body when the investigating officers arrived at the scene; the dog died shortly thereafter. A 1965 Plymouth later identified as belonging to Tichnell, was observed partially off Route 4 in a snow-filled ditch, lodged against a wire fence and post; the vehicle was facing south, approximately forty feet from the deputy's body. The right passenger window was open. Two bullet holes were observe in Tichnell's car. One shot had struck the left front door of the vehicle near the door lock; the other hit the left front area of the doorpost. A 9 millimeter Browning semiautomatic revolver, later identified as the homicide weapon, and owned by Tichnell, was found on the front seat of his 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 scattered about Route 4 in a cluster near the deputy's body. A fully loaded Smith and Wesson .38 revolver that had been stolen from Davidson's store three days earlier was also recovered from a field near the store close to Route 4.

At approximately 5:45 a. m. on the morning of the shooting, at a point about six miles from Oakland, Jerry Wilson saw a speeding car run a stop sign, hit a guard rail and go over an embankment. Two men ran from the vehicle, which was later identified as Deputy Livengood's police cruiser. At about 6 a. m., two armed men gained entry into the residence of Clifford Friend, which was located about 500 yards from the wrecked police cruiser. According to the testimony of Friend's twenty-year-old son, Carl, one of the men, who had a shoulder wound and was wearing a ski mask, said that he had "just shot and killed a fellow." Carl testified that the men demanded the keys to his car, tied up the four members of the family, ripped out the telephone wires, took $20 from him, a camera and a hat, and departed driving his 1978 Camaro. The Friends reported the incident to the police, including the make and license number of Carl's car.

At approximately 9:30 a. m. that morning, West Virginia State Police Troopers observed Tichnell and Recek driving Carl Friend's car, and they arrested the two men. Among other items removed from the car were a bag containing the handguns stolen from Davidson's and a samurai sword with dog blood and dog hair on it. The bag also contained a shoulder holster capable of accommodating a 9 millimeter Browning semiautomatic; it was stained with blood of a type matching Tichnell's. The troopers observed that Tichnell had a gun shot wound in his right shoulder, a one and one-half inch laceration over his right eye, and a crushed tooth.

On the day of his arrest, after he had been treated for his wounds, Tichnell gave the police two statements, both of which were admitted into evidence without objection as to their voluntariness. In the statements, Tichnell said that on the night of January 17, 1979, he and Recek, a casual acquaintance, had been drinking together in Fairmont, West Virginia. Tichnell said he was a little intoxicated because between the hours of 11 p. m. on January 17 and 3:30 a. m. on January 18, he had consumed six to eight beers at one place, four to five Black Russians at a second place, and used 1/6 of an ounce of marijuana. Tichnell told Recek that he had broken into Davidson's store on January 15, 1979 and had taken a .38 Smith and Wesson gun. The two men decided to return to Davidson's that night to steal more guns, and they drove to...