Tichnell v. State

Murphy, C. J., delivered the opinion of the Court. Davidson, J., concurs in the result. 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 ⁴⁵ 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 Tiehnell’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 breaking. 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. 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 ⁴⁶ 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 ⁴⁷ (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 (hi (3). ⁴⁸ (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 "vociferious 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.” ⁴⁹ 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 Liven good’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 Tichnelfs 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 commis ⁵⁰ sion 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 remáining witnesses who testified for the State at the trial. At this point, the prosecutor moved for permission to produce live witnesses to complete the presentation of his case to the sentencing jury; the trial judge denied the request. At the same time, the court said that it was not limiting anyone in the presentation of relevant testimony. The court noted that the procedure of reading the transcript to the jury was subject to Tichnell’s objection and this was so even though he agreed to stipulate to certain evidence being read to the jury from the transcript.

The prosecutor objected to the procedure being followed by the court, stating that it was his understanding that the entire transcript and all the trial exhibits would be presented to the jury. At this juncture, the court said: "I am attempting to let this jury have some of the facts, enough so they can determine, one, that the deceased was a police officer in the performance of his duties; two, that there was an escape or attempt to escape from lawful custody, which are the elements you have alleged entitled the State of Maryland to request the death penalty. Anything other than that, I don’t consider relevant.” The court said that the entire transcript would not be read to the jury but only those parts which were relevant. It told Tichnell that he could offer the testimony of any live witnesses that he might wish to call and that the State also could offer additional testimony, other than of witnesses whose testimony was included in the trial transcript.

This exchange resulted in Tichnell’s counsel claiming that he was being "whipsawed, with the State trying to change the rules in the middle of the stream.” The court then remarked: "We are going to proceed as we started out. You may proffer any witnesses you wish.” ⁵¹ Both the prosecutor and Tichnell’s counsel expressed continuing dissatisfaction with the procedure being followed. The trial judge again remarked that no other procedure could be utilized. Thereafter, counsel agreed to stipulate to the relevancy of the testimony of the remaining State witnesses who had testified at the trial, as well as to the admissibility of certain photographic and other trial exhibits.

After the State concluded its case-in-chief, Tichnell testified before the sentencing jury. His testimony was consistent with his testimony at the trial, the thrust of which conformed with his statement given to the police at the time of his arrest, i.e., that after the storehouse breaking he was apprehended by the deputy and submitted to arrest; that he was not attempting to escape or evade lawful custody when, after he was bitten by the officer’s K-9 dog, he went to his car to bandage his eye; that the officer followed him there and shot him through the shoulder without provocation; and that it was only to save his own life that he shot and killed the deputy sheriff. In his testimony, Tichnell undertook to produce evidence of mitigating circumstances, as enumerated in § 413 (g). Tichnell’s wife and mother testified in his behalf.

The court permitted the prosecutor to call one live rebuttal witness to testify — a forensic chemist who sought to rebut Tichnell’s testimony that the shooting was at point-blank range. It was the chemist’s testimony that because there were no powder burns on the shoulder portion of Tichnell’s jacket, the shooting could not have occurred consistent with Tichnell’s version of the event. The trial judge then instructed the sentencing jury. He said that because the jury had not heard the evidence in the original case, counsel and the court had attempted to give the jury "at least the basic facts as they were presented to that previous jury.” He reminded the jury that it "did not see or hear, save for a few, the actual witnesses or the testimony as it was originally presented.” Having parts of the trial transcript read to the jury was, the trial judge said, "the only ⁵² way the Court could see to produce the actual testimony as it was given.” The court continued: "Obviously, with human frailties, had we brought the witnesses back there may be some variance in the testimony.

But we felt that you were entitled to hear, even though you didn’t hear it from the actual mouths of the witnesses, the testimony as it was produced at the previous trial.” The court fully instructed the jury, consistent with the language of § 413 as to the burden of proving the existence of aggravating and mitigating circumstances, as well as the consequences of the jury’s determination. Following extended closing arguments of counsel, the jury found the existence of the two aggravating circumstances relied upon by the State: (1) that the victim was a law enforcement officer who was murdered in the performance of his duties, and (2) that the defendant committed the murder in furtherance of an escape from or an attempt to escape from or evade lawful custody by a law enforcement officer. The jury found three mitigating circumstances to exist: (1) that the defendant had not previously been convicted of a crime of violence, (2) that the defendant acted under substantial duress, domination or provocation of another person, but not so substantial as to constitute a complete defense to the prosecution, and (3) that it is unlikely that the defendant will engage in further criminal activity that would constitute a continuing threat to society. The jury found that it was not proven by a preponderance of the evidence that the mitigating circumstances outweighed the aggravating circumstances and accordingly, pursuant to § 413 (h) (2), the jury sentenced Tichnell to death.

(3) Tichnell contends on appeal that the action of the trial court in admitting the transcript of the criminal trial over his objection violated § 413 (c), which limits the "type of evidence” admissible at a capital sentencing hearing. Addi ⁵³ tionally, he claims that the admission of the transcript at the sentencing hearing denied him the right of confrontation and cross-examination in violation of the Sixth Amendment to the federal constitution. 3 He also argues that the sentencing proceeding was a critical stage of the trial proceedings at which due process and fair trial principles apply. The key issue at the sentencing hearing, it is argued, concerned whether there was proof beyond a reasonable doubt that Tichnell was escaping or attempting to escape from or evade lawful custody when the deputy was shot and killed. Tichnell urges that the use of prior recorded trial testimony as a means to prove this statutory aggravating circumstance offended his confrontation and due process rights because it was not shown that the witnesses were unavailable to testify at the sentencing hearing.

Moreover, Tichnell suggests that the trial judge was erroneous in his belief, as expressed in his instructions to the jury, that it was the court’s responsibility to produce before the jury "the actual testimony as it was given” at the trial. The State contends that it was within the discretion of the trial judge to restrict the prosecution to the presentation of evidence through reading of portions of the earlier transcribed testimony. While the State agrees that Tichnell was entitled to due process at his capital sentencing hearing, and that it would have been preferable had the prosecutor been permitted to present live testimony from all who testified at the original trial, nevertheless it maintains that Tichnell was not denied any statutory or constitutional rights by the procedure utilized by the trial judge. According to the State, § 413 contemplates that the capital sentencing proceeding will ordinarily be conducted before the same jury that determined the defendant’s guilt, and would therefore have before it all the evidence presented in the case.

In such circumstances, the purpose of the separate sentencing hearing would be to provide an opportunity to present additional evidence as to the existence of ⁵⁴ aggravating and/or mitigating circumstances. But where, as here, the sentencing tribunal has not heard the evidence proving the commission of the murder, the State points to the need for some mechanism for providing information about the crime itself. In the present case, the State contends that it was the purpose of reading the transcript of the prior trial to acquaint the jury with the circumstances of the offense so that, with whatever additional evidence was available, the jury could properly determine whether the sentence would be death or life imprisonment. The State argues that the prior recorded trial testimony read to the jury had been given under oath, with Tichnell present to confront and cross-examine the witnesses against him.

Most of the witnesses who testified for the State, it is suggested, described objective observations about which there was little dispute. It is therefore argued that this is not a case, like Gardner v. Florida, 430 U.S. 349 , 97 S. Ct. 1197 , 51 L. Ed. 2d 393 (1977), upon which Tichnell places reliance, where a death sentence was vacated because it was based in part on information contained in a presentence report not revealed to the defendant or his counsel, and which the defendant had no opportunity to deny or rebut. Tichnell’s right of confrontation was satisfied, the State urges, despite the fact that the prior recorded testimony was used at the sentencing hearing, because he was present at the sentencing hearing and had ample opportunity to refute or explain the evidence as it was there presented. The State argues that under Ohio v. Roberts, 448 U.S. 56 , 100 S. Ct. 2531 , 65 L. Ed. 2d 597 (1980), a showing of unavailability of the witnesses is not required where confrontation would serve no useful purpose.

Because confrontation of live witnesses at the sentencing hearing would not have served a useful purpose in this case, the State concludes that the reading of the prior testimony of Tichnell’s criminal trial fully satisfied his due process rights. (4) We said in Crawford v. State, 282 Md. 210 , 383 A.2d 1097 (1978), with full citation to controlling Supreme Court deci ⁵⁵ sions, and to our own cases, that the Sixth Amendment right of an accused in a criminal case to confront the witnesses against him is a fundamental constitutional right made obligatory on the states by the Fourteenth Amendment to the federal constitution. 4 We said, citing State v. Collins, 265 Md. 70 , 288 A.2d 163 (1972), that the same right is secured by Article 21 of the Maryland Declaration of Rights. We noted that the primary interest secured by the confrontation clause is the right of cross-examination and that an adequate opportunity for cross-examination at the earlier proceeding may satisfy the clause in the absence of physical confrontation at the later proceeding. However, for the testimony taken in the former proceeding to be admissible at a subsequent proceeding, we said that both the state and federal constitutions, as well as Maryland common law, ordinarily require proof that the witness whose prior testimony is to be used is unavailable to testify.

It is well recognized that the right to confront and cross-examine the witnesses against the accused insures the accuracy of the fact-finding process by testing the witnesses’ credibility. Davis v. Alaska, 415 U.S. 308 , 94 S. Ct. 1105 , 39 L. Ed. 2d 347 (1974); California v. Green, 399 U.S. 149 , 90 S. Ct. 1930 , 26 L. Ed. 2d 489 (1970); Barber v. Page, 390 U.S. 719 , 88 S. Ct. 1318 , 20 L. Ed. 2d 255 (1968). Ohio v. Roberts, supra, upon which the State places reliance — we think erroneously — involved the use of the prior recorded preliminary hearing testimony of a witness at the subsequent criminal trial. The accused objected on the ground that such use violated the confrontation clause of the Sixth Amendment.

The Supreme Court there said, referring to or quoting from earlier of its decisions, that the clause reflects a preference for face-to-face confrontation at trial; that the primary interest secured by the clause is the right of cross-examination; that it is the literal right to "confront” the witness at trial that forms the core of the values furthered by the confrontation clause; and that the clause envisions a ⁵⁶ personal examination and cross-examination of the witness, in which the accused