Tichnell v. State, 3

CourtCourt of Appeals of Maryland
Citation297 Md. 432,468 A.2d 1
Docket NumberNo. 3,3
PartiesRichard Danny TICHNELL v. STATE of Maryland. ,
Decision Date01 September 1982
Clark B. Frame, Morgantown, W.Va. (Richard D. Poling, Morgantown, W.Va., on the brief), for appellant
Attys. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), 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.), Article 27, §§ 412-414, inclusive. Tichnell waived his statutory right to have the jury determine whether the death penalty should be imposed upon him; he elected instead to have the trial judge decide the issue. The court sentenced him to death. On appeal, we affirmed the murder conviction 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). We remanded for a new sentencing hearing. Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980) (Tichnell I ). Thereafter, 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. On appeal, we again vacated the death sentence and remanded for a new sentencing hearing; we concluded that the trial judge had 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 this appeal followed.


Tichnell contends that he was denied due process of law at his capital sentencing hearing because the court-conducted Maryland Rule 752 provides:

                voir dire examination was too limited to expose bias on the part of the prospective jurors.   He argues that the court erred in denying his motion to personally conduct the voir dire examination of the individual jurors.   In support of this argument, Tichnell suggests that it was impossible "to prepare in advance appropriate voir dire examination questions, subject to acceptance or rejection by the trial court, until counsel had an opportunity to observe and ascertain the decorum and atmosphere in the courtroom, to hear the nature and reach of the trial court's voir dire examination and inquiries, and to get a view of the prospective jurors and note their attitude and silence or responses to the initial voir dire examination."

"The court may permit the parties to conduct an examination of prospective jurors or may itself conduct the examination. If the court conducts the examination, it shall permit the parties to supplement the examination by any further inquiry it deems proper or shall itself submit to the prospective jurors the additional questions proposed by the parties it deems proper."

Consistent with the provisions of the rule, the trial judge (Bowen, J.) announced at the outset of the proceedings that he would conduct the voir dire questioning of prospective jurors and would permit Tichnell to submit additional questions to be propounded by the court to the jurors. The court thereafter asked a number of questions aimed at exposing juror bias or partiality. Tichnell submitted additional voir dire questions to the court, all of which the court asked the prospective jurors.

The jury selection process must, of course, satisfy the essential demands of fairness guaranteed by the fourteenth amendment in order to afford the accused his due process right to an impartial jury. See Ristaino v. Ross, 424 U.S. 589, 595 n. 6, 96 S.Ct. 1017, 1020 n. 6, 47 L.Ed.2d 258 (1976); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). The voir dire examination of prospective jurors protects this right by exposing the existence of grounds for Maryland Rule 752 permits, but does not require, individual voir dire examination of prospective jurors by counsel. The matter is committed to the sound discretion of the trial judge; there is no absolute right vested in counsel, constitutional or otherwise, to conduct individual voir dire. See, e.g., Langley v. State, 281 Md. 337, 378 A.2d 1338 (1977); Bryant v. State, 207 Md. 565, 115 A.2d 502 (1955); Handy v. State, 101 Md. 39, 60 A. 452 (1905); United States v. Duke, 409 F.2d 669 (4th Cir.1969), cert. denied, 397 U.S. 1062, 90 S.Ct. 1497, 25 L.Ed.2d 683 (1970) (defendant has no constitutional right to counsel-conducted voir dire); Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980) (no constitutional right to individual jury voir dire). See also Irvin v. State, 617 P.2d 588 (Okl.Cr.App.1980).

                disqualification.   See Couser v. State, 282 Md. 125, 383 A.2d 389, cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 156 (1978);   Langley v. State, 281 Md. 337, 378 A.2d 1338 (1977)

Tichnell has not identified any specific deficiencies or particular shortcomings in the court's voir dire examination of the prospective jurors. Instead, he generalizes that the court's "attitude and disposition" during voir dire were antithetical to fair and impartial jury selection. He complains that the court's questioning of prospective jurors was so brief, stiff and short as to have left him "on a stormy sea without compass or rudder." Manifestly, these allegations are insufficient to demonstrate that the jury selection process failed to assure Tichnell of a fair and impartial jury. We conclude, therefore, that no error appears on the record in this case with respect to the trial judge's conduct of the voir dire examination in conformity with the dictates of Rule 752. 1 See also Poole v. State, 295 Md. 167, 453 A.2d 1218 (1983).


Tichnell contends that his third sentencing proceeding was null and void because the State failed to comply with the notice requirement of Art. 27, § 412(b). That section provides, inter alia, that a person found guilty of first degree murder must be sentenced to life imprisonment unless

"the State notified the person in writing at least 30 days prior to trial that it intended to seek a sentence of death, and advised the person of each aggravating circumstance upon which it intended to rely ...."

Tichnell timely received the requisite statutory notice before his original trial. He was advised that the State intended to prove the existence of two aggravating circumstances--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. Section 412(b) does not require that the State give additional notice before commencing the capital sentencing proceeding. Plainly, the word "trial," in the context of its usage in § 412(b), does not encompass a resentencing proceeding.


Tichnell maintains that his third sentencing proceeding was barred by the Double Jeopardy Clause of the Fifth Amendment. 2 He contends that the trial court's conduct in the second capital sentencing proceeding constituted "judicial overreaching," which barred further resentencing because the trial judge "intentionally and deliberately directed and required the reading of prior recorded trial testimony to the jury."

"Judicial overreaching" is significant for purposes of double jeopardy when a mistrial is declared at the behest of the defendant. Generally, a defendant may be reprosecuted if the initial trial resulted in a mistrial on his motion, United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556 (1971); Jourdan v. State, 275 Md. 495, 508, 341 A.2d 388, 396 (1975), the rationale being that the defendant has elected to terminate the "right to have his trial completed by a particular tribunal." See Oregon v. Kennedy, 456 U.S. 667, 672-74, 102 S.Ct. 2083, 2087-88, 72 L.Ed.2d 416, 422-23 (1982). Where the court engaged in misconduct with the intent to provoke the defendant's motion for a mistrial, retrial could be barred by the double jeopardy clause. Id. at 679, 102 S.Ct. at 2091, 72 L.Ed.2d at 427. As the Supreme Court recently explained:

"In such a case, the defendant's valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy ...."

Id. at 673, 102 S.Ct. at 2088, 72 L.Ed.2d at 423.

When a defendant's trial is completed and his conviction later reversed on appeal, different rules pertain. With some exceptions, the defendant who successfully challenges his conviction may be retried, under the rationale that "the defendant wiped the slate clean and the parties may start anew." Jones v. State, 288 Md. 618, 625, 420 A.2d 1241, 1244 (1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 928, 66 L.Ed.2d 845 (1981).

Tichnell's second capital sentencing proceeding did not end in a mistrial; rather, the proceeding was completed. While the sentence imposed was later vacated in Tichnell, II, supra, 290 Md. 43, 427 A.2d 991, the trial court's conduct did not amount to judicial overreaching. Rather, the trial judge was simply mistaken in his belief that it was essential that thetranscript

                of testimony in Tichnell's original trial be introduced in evidence so as to permit the sentencing jury to have before it the identical testimony that was produced before the factfinder at the guilt or innocence stage of the proceeding.   Manifestly, the court's action was not intended to provoke Tichnell to move for a mistrial.   We conclude that nothing in the bar of double

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