Tichnell v. State
| Decision Date | 06 April 1981 |
| Docket Number | No. 60,60 |
| Citation | 290 Md. 43,427 A.2d 991 |
| Parties | Richard Danny TICHNELL v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Clark B. Frame, Morgantown, W. Va. (G. Gary Hanna, Cumberland, on brief), for appellant.
Deborah K. Handel, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.
Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
This case involves Maryland's capital punishment statute, Maryland Code (1957, 1976 Repl.Vol., 1980 Cum.Supp.), Art. 27, §§ 412-414, and whether the death sentence imposed by a jury upon Richard Tichnell comported with statutory and constitutional requirements.
(1)
On January 18, 1979, at approximately 5:25 a. m., Tichnell and a confederate, Oscar Recek, broke into a store near Oakland, 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 claimed the shooting was in justifiable self-defense. In his statement, Tichnell told the police that he had submitted to arrest by Livengood and was directed to lie on the ground under guard by the deputy's K-9 dog. Tichnell said that when he moved his head, the dog bit him in the eye, after which he ran to his nearby car to get his medical kit to bandage his eye. According to Tichnell's statement, Livengood followed him and without provocation shot him in the shoulder, propelling him backwards through the open front door of his car. As Livengood prepared to fire at him again, Tichnell said he retrieved his own gun, which was under the front seat of his car, and after the deputy had fired at him a second time, Tichnell shot the deputy four or five times at close range.
Tichnell was indicted on March 2, 1979 for first degree murder. Pursuant to Code, Art. 27, § 412(b), the State notified Tichnell that it sought imposition of the death penalty.
At Tichnell's jury trial, the State presented a number of witnesses to establish that he had murdered the deputy in cold blood as he was interrupted in his departure from the scene of the storehouse break in. Tichnell's testimony in his own behalf was consistent with the statement which he had given to the police at the time of his arrest. The only eyewitness to the shooting, Oscar Recek, was also indicted for the offense and did not testify. The jury rejected Tichnell's version of the killing and found him guilty of wilful, deliberate and premeditated first degree murder.
Tichnell elected to be sentenced by the trial judge, rather than by the jury, as authorized by § 413(b)(3). The judge imposed the death penalty. On appeal, we affirmed the judgment of conviction but vacated the death sentence on the ground that it had been imposed under the influence of an "arbitrary factor" in violation of § 414(e)(1). Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980). As required by the provisions of § 414(f)(1)(ii), we remanded the case "for a new sentencing proceeding under § 413." Id. at 745, 415 A.2d 830.
On remand, Tichnell elected to be resentenced by a new jury, as authorized by § 413(b)(2)(iv). It was the sole function of the jury to determine whether Tichnell should be sentenced to death or life imprisonment. § 413(a). In making that determination, the jury was governed by various subsections of § 413. The "type of evidence" admissible at the sentencing hearing is delineated in § 413(c):
"(i) Evidence relating to any mitigating circumstance listed in subsection (g);
(ii) Evidence relating to any aggravating circumstance listed in subsection (d) of which the State had notified the defendant pursuant to § 412(b);
(iii) Evidence of any prior criminal convictions, pleas of guilty or nolo contendere, or the absence of such prior convictions or pleas, to the same extent admissible in other sentencing procedures;
(iv) Any presentence investigation report. However, any recommendation as to sentence contained in the report is not admissible; and
(v) Any other evidence that the court deems of probative value and relevant to sentence, provided the defendant is accorded a fair opportunity to rebut any statements."
Under § 413(d), it is the province of the sentencing jury to determine from the evidence whether any of the aggravating circumstances enumerated in that section, and relied upon by the State for the imposition of the death penalty, have been established beyond a reasonable doubt. 1 Under § 413 (g), the jury is required to determine, by a preponderance of the evidence, whether any of eight enumerated mitigating circumstances exist. 2 Should the jury not find, beyond a reasonable doubt, the existence of one or more aggravating circumstances, it is required to impose a life sentence. § 413(f). Should the jury find the existence of both aggravating and mitigating circumstances, it then must determine, by a preponderance of the evidence, whether "the mitigating circumstances outweigh the aggravating circumstances." § 413(h) (1). If the jury finds "that the mitigating circumstances do not outweigh the aggravating circumstances, the sentence shall be death." § 413(h)(2). If the jury finds "that the mitigating circumstances outweigh the aggravating circumstances, the sentence shall be imprisonment for life." § 413(h)(3).
(2)
At the outset of Tichnell's resentencing hearing, the trial judge stated that he intended to adhere to his decision, made earlier at a conference with counsel present, to have the transcript of Tichnell's trial read to the jury. He said that "short of having a full-blown trial, there was no other way to proceed." The trial judge said that Tichnell could object to the reading of any part of the trial transcript and he would rule on the objection at that time. Tichnell entered a "vociferous objection" to reading the transcript of the trial proceedings to the jury. He argued that § 413(c) explicitly sets forth the "type of evidence" that could be admitted at the sentencing hearing, and did not include the introduction of the prior recorded trial testimony, as contained in the trial transcript. He said that the transcript would reveal, to his grievous prejudice, the commission of other criminal offenses for which he was neither charged nor convicted. He argued that the jury "is going to necessarily pass on the credibility of the witnesses with reference to whether or not aggravating circumstances and/or mitigating circumstances exist." He maintained that the federal constitution safeguards his right to have the sentencing jury "see the witnesses (and) ... for us to adduce any additional cross-examination, which could be entirely different now than it was." The court overruled Tichnell's objection, stating that he could "rebut any testimony under the rules and under the law." After the jury was sworn, the trial judge advised it that Tichnell's guilt of first degree murder had been previously established and the jury was "merely ... to determine the sentence"; that the transcript of Tichnell's criminal trial would be read to the jury; that the State could "expand upon that, if they have any further evidence of any probative value, and the defense, of course, may rebut and put any mitigating circumstances on which they think are probative, after which you will hear argument of counsel."
Opening statements of counsel were then made to the jury. The prosecutor outlined his version of the evidence that would be established from a reading of the trial transcript. He told the jury that he would prove the existence of two aggravating circumstances under § 413(d), namely, that Livengood was a law enforcement officer killed in the performance of his duties, and that the murder was committed in furtherance of an escape or an attempt to escape from or evade lawful arrest by a law enforcement officer. In his opening statement, Tichnell's counsel outlined his version of the evidence adduced at the trial. He conceded that Livengood was a law enforcement officer killed in the performance of his duties, but denied that the evidence would establish that the killing took place during an escape or an attempt to evade Livengood's lawful custody. Tichnell told the jury that the evidence would establish these mitigating circumstances: that he had no prior criminal record; that the victim was a participant in his (Tichnell's) conduct; that he acted under substantial duress or provocation; that he was of a youthful age; that his act in killing the deputy was not the sole proximate cause of the deputy's death; and that since he (Tichnell) would be in prison for life, he would not be a continuing threat to society.
After opening statements were completed, the trial transcript was introduced into evidence over Tichnell's objection and two court reporters undertook to read the questions and answers of the witnesses at the trial to the sentencing jury. The testimony of seven State witnesses was read to the jury with few objections being made by Tichnell. The testimony of another State witness implicating Tichnell in the commission of other crimes was objected to and was not read to the jury. A dispute then arose as to the "ground rules," each counsel stating a different view of what was to be done when they could not agree on the relevancy of the prior recorded testimony of the witnesses. At the court's urging, counsel agreed to consider stipulating as to the relevancy of the testimony of the remaining witnesses who testified for the State at the trial. At this point, the prosecutor moved for permission to produce...
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