Tichnell v. State

468 A.2d 1, 297 Md. 432

• Court: Court of Appeals of Maryland
• Decided: November 30, 1983
• Docket: [No. 3, September Term, 1982.]
• Status: Published

Opinions

Murphy, C. J.,

delivered the opinion of the Court, in which Eldridge and Cole, JJ., concur and Davidson, J., dissents. Eldridge, J., filed a concurring opinion at page 477 infra; Cole, J., filed a concurring opinion at page 482 infra; Davidson, J., filed a dissenting opinion at page 485 infra.

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 undér 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.

I

Tichnell contends that he was denied due process of law at his capital sentencing hearing because the court-conducted 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.”

Maryland Rule 752 provides:

"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, 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 disqualification. See Couser v. State, 282 Md. 125, 383 A.2d 389, cert. denied, 439 U.S. 852 (1978); Langley v. State, 281 Md. 337, 378 A.2d 1338 (1977).

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 (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 (Okla. Crim. App. 1980).

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).

II

Tichnell contends that this 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.

Ill

Tichnell maintains that his third sentencing proceeding was barred by the Double Jeopardy Clause of the Eifth 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 (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, 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 the transcript of testimony in TichnelFs 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 jeopardy prevented a third capital sentencing proceeding in TichnelFs case. See Tichnell, II, supra, 290 Md. at 64.

IV

Tichnell next contends that the resentencing record in this case does not support the imposition of the death penalty. He argues that the evidence adduced at the resentencing hearing differs in material respects from that produced at his original trial; that if sustains his version of the killing of Deputy Livengood; and that the death sentence imposed upon him must therefore be vacated. Tichnell also maintains that the death sentence imposed upon him constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Federal Constitution and Article 25 of the Maryland Declaration of Rights. This is particularly so, he claims, because he has been made to suffer through three capital sentencing hearings, each of which resulted in the imposition of a death sentence. Proper consideration of TichnelFs arguments necessitates that we review the pertinent provisions of the Maryland capital sentencing statute, the governing law, and the evidence underlying TichnelFs conviction and sentence.

(A)

Section 412 (b) of the Maryland statute provides that a person found guilty of murder in the first degree must be sentenced to life imprisonment unless the State (1) notifies the accused in writing at least 30 days prior to trial that it intends to seek the death penalty, (2) advises the accused of each "aggravating circumstance” upon which it intends to rely and (3) obtains the death penalty in accordance with the provisions of § 413 of the statute. Where the State complies with these prerequisites, and the accused is found guilty of murder in the first degree, § 413 (a) requires that a separate sentencing hearing be held, either before a jury or before the court, if the defendant waives his right to a jury hearing. Section 413 (c) provides that the following type of evidence is admissible at the sentencing hearing:

"(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) of the statute, the sentencing authority, either judge or jury, is first enjoined to consider whether, beyond a reasonable doubt, any of ten statutorily delineated aggravating circumstances exist.* 2³ 456If the sentencing authority does not find, beyond a reasonable doubt, the existence of one or more of the aggravating circumstances, the sentence must be life imprisonment. § 413 (f). If, however, the sentencing authority finds beyond a reasonable doubt the existence of one or more aggravating factors, then it must determine whether, by a preponderance of the evidence, any of eight "mitigating circumstances” exist. § 413 (g).* 23⁴ 5678The statute requires that a sentence of life imprisonment be imposed if, by a preponderance of the evidence, the sentencing authority finds that the mitigating circumstances outweigh the aggravating circumstances. § 413 (h) (1) and (3). If the sentencing authority concludes that the mitigating circumstances do not outweigh the aggravating circumstances by a preponderance of the evidence, a sentence of death must be imposed. § 413 (h) (2).⁵

At the conclusion of the evidence at the sentencing hearing, the trial judge is required by § 413 (c) (3) to instruct the jury "as to the findings it must make in order to determine whether the sentence shall be death or imprisonment for life and the burden of proof applicable to these findings” in accordance with the governing provisions of § 413.

Section 413 (i) requires that the determination of the sentencing authority must be in writing and, if a jury, be unanimous and signed by the foreman. Section 413 (j) requires the sentencing authority to specify:

"(1) Which, if any, aggravating circumstances it finds to exist;

(2) Which, if any, mitigating circumstances it finds to exist;

(3) Whether any mitigating circumstances found under subsection (g) outweigh the aggravating circumstances found under subsection (d);

(4) Whether the aggravating circumstances found under subsection (d) are not outweighed by mitigating circumstances under subsection (g); and

(5) The sentence, determined in accordance with subsection (f) or (h).”

Section 413 (k) requires that the court impose the sentence determined by the jury under § 413 (f) or (h); it further specifies that the court dismiss the jury and impose a sentence of life imprisonment if the jury, within a reasonable time, is unable to agree as to the sentence to be imposed. Section 413 (1) authorizes this Court to adopt rules of procedure to govern the conduct of the capital sentencing proceeding, including any forms to be used by the sentencing authority in making its written findings and determination of sentence.

Section 414 entitled "Automatic review of death sentences” requires in subsection (e) that this Court review the imposition of the death penalty on the record before the sentencing authority in order to determine:

"(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

(2) Whether the evidence supports the jury’s or court’s finding of a statutory aggravating circumstance under § 413 (d);

(3) Whether the evidence supports the jury’s or court’s finding that the aggravating circumstances are not outweighed by mitigating circumstances; and

(4) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

With respect to the "similar cases” proportionality review provision of § 414 (e) (4), § 414 (f) (2) requires that this Court "include in its decision a reference to the similar cases which it considered.”

Section 414 (f) mandates that this Court either (1) affirm the death sentence, (2) set it aside and remand for a new sentencing proceeding, or (3) "[s]et aside the sentence and remand for a modification of the sentence to imprisonment for life.”

Maryland Rule 772A, adopted by this Court pursuant to § 413 (1) of the statute, prescribes a verdict form for use by the sentencing authority in making its findings and determination. The form tracks the pertinent statutory language of § 413 and directs the sentencing authority to specify, by "yes” or "no” answer, whether the aggravating and/or mitigating circumstances were established by the evidence.⁶ The verdict form guides the sentencing authority in its final determination of sentence within the formulation of § 413 of the statute. The rule requires that the verdict form be signed by each juror. It requires in subparagraph f that the trial judge complete a report, the detailed content of which the rule prescribes. The report calls for pertinent information pertaining to the accused and the crime, and requires the trial judge to describe the "facts of offense” and state his opinion as to whether the death sentence was justified.⁷ The rule requires that the trial judge send his report to counsel for the parties for comment as to its factual accuracy. Counsel’s comments are required to be attached to the trial judge’s report; the report must be promptly filed "with the clerk of the trial court, and in the case of a life sentence with the Clerk of the Court of Appeals.” ⁸

(B)

In Tichnell I, supra, 287 Md. at 729, we held that Maryland’s capital sentencing statute, enacted in 1978, "on its face, ... satisfies the requirements of the Eighth and Fourteenth Amendments to the federal constitution, and Art. 25 of the Maryland Declaration of Rights.” We so concluded after reviewing a number of Supreme Court cases concerning the constitutionality of death penalty statutes, beginning with Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and including Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); and Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976). We noted the holding in Furman, namely, that death sentences administered under statutes which vested trial courts of general jurisdiction with the discretion to sentence a person convicted of first degree murder to either life or death violated the Eighth and Fourteenth Amendments to the Federal Constitution. We further noted that some states, including Maryland, initially misread the holding in Furman to require that a death penalty statute, to be constitutional, had to automatically require imposition of the death penalty upon conviction of a specifically defined and narrowly drawn class of first degree murder. We also noted that in Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), the Supreme Court held that mandatory death penalty statutes were unconstitutional for failure to require the sentencing authority to consider the character and record of the individual offender and the circumstances of the particular offense. Woodson declared that mandatory death penalty statutes impermissibly vested standardless sentencing discretion in juries. 428 U.S. at 302-03.

We observed in Tichnell I that in Gregg, Proffitt and Jurek, the Supreme Court upheld the death penalty statutes, respectively, of Georgia, Florida and Texas, all of which involved the constitutionality of so-called "guided discretion” death penalty statutes. In Gregg, the Court’s plurality opinion upheld the constitutionality of such statutes against Eighth and Fourteenth Amendment attack. The Court there construed Furman as holding that the death penalty could not be imposed under sentencing procedures that created a substantial risk that the penalty would be inflicted in an arbitrary and capricious manner; it said:

"Furman mandates that where discretion is afforded a sentencing body on a matter so grave as . the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” 428 U.S. at 189.

We further noted in Tichnell I, supra, 287 Md. at 723, that the death penalty statutes upheld in Gregg, Proffitt and Jurek each contained three provisions which guarded against the concerns raised in Furman. First, each of the new discretionary statutes provided for a bifurcated trial so that guilt and punishment would be separately determined. Second, imposition of the death penalty was restricted to cases in which certain aggravating circumstances were established. The sentencing authority was also required to consider the existence of mitigating circumstances. The Court stated in Jurek, 428 U.S. at 274, that this type of provision

"guides and focuses the [sentencing authority’s] objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.”

Finally, the statutes that were upheld provided for expedited appellate review of the death penalty statute as a check against the random or arbitrary imposition of the death penalty.

The Maryland statute complies with the three general methods of guiding the discretion vested in the sentencing authority, as required by the Supreme Court cases. We said in Tichnell I, supra, 287 Md. at 728-29:

"The [Maryland] statute provides a bifurcated trial procedure, and the imposition of the death penalty is limited to cases in which the sentencing authority finds at least one aggravating circumstance. The sentencing authority is required to consider the existence of mitigating circumstances. A sentence of death may be imposed only if the mitigating circumstances do not outweigh the aggravating circumstances. Although the sentencing authority still has discretion under the statute, it is guided by clear and objective standards. See Gregg v. Georgia, supra, 428 U.S. at 197-98.

"Moreover, the statutory scheme incorporates the third major safeguard against arbitrariness, i.e., the expedited automatic appeal of all death sentences to this Court. As indicated, we are enjoined by statute to review each sentence of death and determine whether it was arbitrarily imposed, whether the evidence supports the finding of the existence of an aggravating circumstance and whether it is not outweighed by mitigating circumstances and, finally, whether the sentence is disproportionate to sentences imposed in similar cases.”

More recently, in Johnson v. State, 292 Md. 405, 437, 439 A.2d 542, 560 (1982), we observed that § 413 of Maryland’s capital sentencing statute guides the discretion vested in the sentencing authority by setting forth clear and objective standards to insure that the death penalty is not inflicted in an arbitrary and capricious manner in violation of constitutional principles.

V

We now proceed to consider the imposition of the death penalty in this case and to determine whether, under § 414 (e) of the statute, it was imposed (1) under the influence of passion, prejudice, or any other arbitrary factor; (2) whether the evidence supports the jury’s finding of a statutory aggravating circumstance; (3) whether the evidence supports the jury’s finding that the aggravating circumstances were not outweighed by mitigating circumstances; and (4) whether the death sentence was "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

The record of the resentencing hearing discloses, as did the evidence at Tichnell’s original trial, that on January 18, 1979, at approximately 5:25 a.m., Tichnell and a confederate, Oscar Recek, broke into Davidson’s store in Oakland, Maryland, for the purpose of stealing handguns. The breaking triggered a silent alarm in the nearby sheriffs office and Deputy Sheriff David Livengood, accompanied by his 108-pound K-9 dog, promptly responded to the scene. The store, located between parallel Routes 219 and 4, had its entrance on Route 219; Route 4 was approximately 252 feet from the rear of the store. Sometime between 5:28 a.m. and 5:31 a.m., Livengood reported over his police radio that he was proceeding to investigate a suspect vehicle. At approximately 5:37 a.m., the police received a call from James Wolfe, who lived behind Davidson’s store; he reported hearing shots. Shortly thereafter, the police arrived at the scene and discovered Livengood’s body lying face down at the northern edge of Route 4. He had been shot seven times and was dead. His service revolver with three live and three spent cartridges was located beneath his body. A pair of handcuffs was found in the road about 23 feet from the deputy’s body. Livengood’s police cruiser was missing. His K-9 dog was found lying off of Route 4 about 26 feet from Livengood’s body; the dog had been stabbed in the left shoulder region and died shortly after the arrival of the police. A car belonging to Tichnell was found in a snow-filled ditch partially off of Route 4; it was facing south and was 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 revolver owned by Tichnell and later identified as the homicide weapon was found in the front seat of Tichnell’s abandoned vehicle. 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.

The State’s witness Wolfe testified that just prior to the shooting he observed a car facing north stopped on Route 4 with its headlights on. He also observed a dog pacing back and fourth in front of the car’s headlights. Wolfe said the dog disappeared after about 10 seconds and that 15 seconds later he heard a burst of shots, followed by a split second pause, the sound of tires spinning and a simultaneous second burst of shots. Wolfe testified that he then saw a second car, without headlights, move about 20 to 30 feet in a southerly direction on Route 4, after which he heard a "thump.” Shortly thereafter, Wolfe noted the vehicle with the headlights leave the area.

Tichnell and Recek were arrested on the morning of the crime 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 crime scene. In the vehicle was a bag containing the guns stolen from Davidson’s store and a samurai sword with dog blood and hair on it. Also in the car was a shoulder holster capable of accommodating a Browning semiautomatic revolver; 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 authorities a statement admitting that he and Recek had broken into Davidson’s store and stolen some guns. He said that they remained in the store about 3 to 5 minutes and were returning to their car when Recek said that he had lost the loaded .38 Smith and Wesson revolver which Tichnell had given him just before they broke into the store. Because this was the same gun that Tichnell had stolen 3 days earlier from Davidson’s store, and because it contained his fingerprints, Tichnell directed Recek to retrace his steps and find the weapon. Rather than risk detection, 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 he saw a police cruiser facing north blocking his lane. At this moment, Tichnell said that his car headlights, which had been defective for some period of time, went out. He observed that an 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 a circle to avoid the dog. Believing that the dog had torn his eye out, Tichnell ran to his car to get a medical aid kit which he kept in the back seat. At this point Tichnell heard the deputy order the dog to watch Recek; the deputy then followed Tichnell to his car, spun him around and placed a gun in his face. At this time, the door on the driver’s side of Tichnell’s two-door vehicle was open. Tichnell said he moved the deputy’s weapon from his face and requested that the officer permit him to tend to his wounded eye. Tichnell stated that the deputy then put his gun against his (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. Tichnell said that the deputy then tried to bring his gun down for another shot. While still holding the deputy’s gun, Tichnell said he reached for his own gun which he kept under the front seat of his car. As the scuffle continued, the deputy fired again, the bullet narrowly missing the top of Tichnell’s head. Tichnell stated 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 into a ditch. Realizing that his car was stuck, Tichnell decided to take the deputy’s cruiser, but found the dog sitting in the front seat. As Recek attempted to get in the open door of the car, the dog lunged at him. Tichnell thereupon removed his samurai sword from his car and stabbed the dog behind its left shoulder; when he withdrew the sword, the dog rolled out of the car. Tichnell said that he and Recek then fled in the deputy’s cruiser but subsequently wrecked it. Thereafter, he and Recek obtained another vehicle and continued their flight into West Virginia. Tichnell’s statement was introduced in evidence before the sentencing jury.

Other evidence adduced by the State showed that of the seven shots fired into the deputy’s body two were fatal, one in the lower back and the other in the back of the head. No powder burns were found on the clothing or upon the wounds of Tichnell or Livengood. The State produced testimony that had the shots been fired at a range less than 3 feet, burned powder residue would have been found on the clothing or wounds of both the deputy and Tichnell. The expert witness concluded that the shots were fired at a distance greater than 3 feet. Evidence produced by the State that Tichnell’s bloody shoulder holster was recovered at the time of his arrest was intended to establish that Tichnell was wearing the holster at the time he was shot in the shoulder and carried his Browning revolver in it when he broke into Davidson’s store. There was evidence that Tichnell’s blood type was found on broken glass fragments from the windshield of the deputy’s car, suggesting that the lacerations over Tichnell’s eye may have been received at the time Tichnell wrecked the deputy’s cruiser. According to one of the arresting troopers, when Tichnell was first arrested he attributed the cut on his eye to the car accident and did not mention a dog bite. Evidence was also adduced to show that in view of the time involved between the break-in at the store, and the shooting of the deputy, Tichnell could not have traversed the 2.3 mile route around Oakland which he said he had taken.

Recek, who was 32 years old at the time of the crime, testified on Tichnell’s behalf. In the course of his testimony, he acknowledged entering Davidson’s store with a loaded gun given to him by Tichnell. He said that Tichnell told him that because of the silent alarm at the store, it was critical that they be out of the store in less than 5 minutes. He acknowledged returning to the store at Tichnell’s direction to look for the lost gun, after which he proceeded toward Route 4. He was in the middle of the field behind Davidson’s store, he said, when he saw the taillights of Tichnell’s car on Route 4, being followed by a police cruiser. Recek testified that the police car stopped when the officer saw him in the field; that it then turned around and that, as he did so, Tichnell circled the area in his vehicle. Recek said that he was about 10 feet from Route 4 when the deputy, accompanied by his K-9 dog, with his gun in hand and handcuffs out, told him he was under arrest and to lie on the ground. After obeying this command, Recek said he observed Tichnell’s car on Route 4 with its headlights blinking on and off. He testified that he saw Tichnell approach the deputy and speak with him; that the deputy ordered Tichnell to lie on the ground and directed his K-9 dog to guard him; that shortly thereafter, Tichnell screamed out that the dog had bit him in the eye and that he was blind; that Tichnell shouted that he was going to his car to get a medical kit; and that at this point Livengood ordered the K-9 dog to leave Tichnell and to guard Recek. From his position on the ground, with the dog barking in his face, Recek said he caught only a "glimpse” of what next occurred; that Livengood and Tichnell left his sight and he next heard a burst Of shots as the two men approached the side of Tichnell’s car, after which he observed Livengood "back tracking” and fall on the ground. Recek said that immediately after the shooting Tichnell said that he "outdrew” the deputy; that it was "He or me”; that he had "No choice”; and that, in addition, he had to kill the dog "or he would have got me.”

Recek acknowledged that he had been convicted of the first degree felony murder of Livengood in a separate trial and sentenced to life imprisonment. At the time of Tichnell’s original trial and two subsequent sentencing hearings, Recek’s case was pending and he did not testify in any of these proceedings.

Tichnell’s testimony before the sentencing jury was generally consistent with his statement to the police on the evening of his arrest. Additionally, he testified that he knew that a silent alarm had been triggered when he broke into Davidson’s store and also knew that an officer would be on his way to the scene within from 2 to 5 minutes. Tichnell testified that while he was unarmed at the time he entered the store, he had given Recek a loaded revolver to carry into the store. He testified that his shoulder holster was under the seat of his car at the time of the shooting; that after the shooting he put his Browning revolver in the holster with the intention of taking it with him in the deputy’s car as he fled the scene; that the gun must have slipped out of the holster, remaining in Tichnell’s abandoned car; that he nevertheless wore the holster without his gun after the shooting occurred. At another point, Tichnell testified that the muzzle of Livengood’s gun was pressed against his shoulder when Livengood fired the first shot and that the deputy’s other shots were fired from a distance of 6 to 8 inches.

At the time of the crime, Tichnell was 32 years of age. He was a high school graduate, a divorced father of one child, had no prior criminal record, had served in the Army for several years, had worked at a steel mill for a number of years but had been unemployed for over one year at the time of the crime.

To refute the State’s expert testimony that the shots were fired at a distance greater than 3 feet, Tichnell produced an expert witness who said that he found a single grain of powder on the coat which Tichnell was wearing at the time of the shooting, indicating that the shots had been fired at point-blank range, as Tichnell had claimed.

At the conclusion of the evidence, Judge Bowen gave detailed instructions to the jury as required by § 413. (c) (3) of the statute. The jury concluded that the two aggravating circumstances upon which the State relied had been established and that the only mitigating circumstance was that Tichnell had not previously been convicted of a crime of violence. Tichnell was then sentenced to death in accordance with the provisions of the statute.

Tichnell does not contend, nor do we find from the record, that the death sentence was imposed upon him under the influence of passion, prejudice or any other arbitrary factor in violation of § 414 (e) (1). Moreover, as required by § 414 (e) (2), we have considered, and conclude, that the evidence before the sentencing authority supports its finding of two statutory aggravating circumstances, i.e., that Livengood was a law enforcement officer who was murdered while in the performance of his duties, and that Tichnell committed the murder in furtherance of an escape or an attempt to evade lawful custody or arrest by a law enforcement officer. We further conclude from our review of the case, as required by § 414 (e) (3), that the aggravating circumstances are not outweighed by the single mitigating circumstance that Tichnell had not previously been convicted of a crime of violence, as defined in § 413 (g) (1).

(B)

(Proportionality Review)

We observed in Tichnell I, supra, 287 Md. at 738-39, that the language of § 414 (e) (4) of the Maryland statute is virtually identical to, and was patterned after, the proportionality review provisions of the Georgia death penalty statute. The Supreme Court in Gregg noted with approval that the Georgia provision functioned as a check against the arbitrary imposition of the death penalty. Gregg, supra, 428 U.S. at 206. As summarized in Gregg, the proportionality review provision of the Georgia statute:

"substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.” Id. at 206.

It was argued in Gregg that the Georgia proportionality review provisions were inadequate because "nonappealed capital convictions where a life sentence is imposed and cases involving homicides where a capital conviction is not obtained are not included in the group of cases which the Supreme Court of Georgia uses for comparative purposes.” Id. at 204 n. 56. In answer to this contention, the Supreme Court simply noted that the Supreme Court of Georgia is authorized to consider such cases and does consider appealed murder cases where a life sentence has been imposed. It concluded: "We do not think that the petitioner’s argument establishes that the Georgia court’s review process is ineffective.” Id. at 204 n. 56.

The Supreme Court’s decisions in Proffitt and Jurek indicate that the absence of a specific statutory provision for proportionality review will not render a death penalty statute constitutionally infirm. In Proffitt, the Court said:

"The statute provides for automatic review by the Supreme Court of Florida of all cases in which a death sentence has been imposed.... The law differs from that of Georgia in that it does not require the court to conduct any specific form of review. Since, however, the trial judge must justify the imposition of a death sentence with written findings, meaningful appellate review of each such sentence is made possible, and the Supreme Court of Florida, like its Georgia counterpart, considers its function to be to '[guarantee] that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case.... If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great.’ State v. Dixon, 283 So.2d 1, 10 (1973).

On their face these procedures, like those used in Georgia, appear to meet the constitutional deficiencies identified in Furman.”

428 U.S. at 250-51.

The review process was attacked on the ground that "the role of the Supreme Court of Florida in reviewing death sentences is necessarily subjective and unpredictable.” Id. at 258. Rejecting this contention, the Court stated:

"While it may be true that that court has not chosen to formulate a rigid objective test as its standard of review for all cases, it does not follow that the appellate review process is ineffective or arbitrary. In fact, it is apparent that the Florida court has undertaken responsibility to perform its function of death sentence review with a maximum of rationality and consistency. For example, it has several times compared the circumstances of a case under review with those of previous cases in which it has assessed the imposition of death sentences. See, e.g., Alford v. State, 307 So.2d, at 445; Alvord v. State, 322 So.2d, at 540-541. By following this procedure the Florida court has in effect adopted the type of proportionality review mandated by the Georgia statute. Cf. Gregg v. Georgia, ante, at 204-206. And any suggestion that the Florida court engages in only cursory or rubber-stamp review of death penalty cases is totally controverted by the fact that it has vacated over one-third of the death sentences that have come before it.” Id. at 258-59.

The petitioner also maintained that

"since the Florida Court does not review sentences of life imprisonment imposed in capital cases or sentences imposed in cases where a capital crime was charged but where the jury convicted of a lesser offense, it will have an unbalanced view of the way that the typical jury treats a murder case and it will affirm death sentences under circumstances where the vast majority of judges would have imposed a sentence of life imprisonment.” Id. at 259 n. 16.

The Court also rejected this argument, stating:

"As we noted in Gregg v. Georgia, ante, at 204 n. 56, this problem is not sufficient to raise a serious risk that the state capital-sentencing system will result in arbitrary and capricious imposition of the death penalty.” 428 U.S. at 259 n. 16.

The Texas statute upheld in Jurek provided for an automatic appeal, but also lacked an express provision for proportionality review. The Court nevertheless assumed that death sentences were subject to this type of review, stating:

"By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be 'wantonly’ or 'freakishly’ imposed, it does not violate the Constitution.” 428 U.S. at 276.

It is thus clear that the essential principle underlying the varieties of proportionality review upheld in Gregg, Proffitt and Jurek is, in short, the guarantee that death sentences will be imposed in a reasonably consistent manner. Tichnell I, supra, 287 Md. at 741.

With these foundation principles in mind, the Court sua sponte asked the parties in this case to address themselves to a number of additional issues, the first of which was:

"Whether the Court of Appeals, in determining whether the imposition of the death sentence under ... sec. 414 (e) (4) is 'excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant,’ is (a) limited to considering only those first degree murder prosecutions where the prosecutor actually sought the imposition of the death penalty or (b) required to consider all first degree murder prosecutions eligible under sec. 413 for imposition of the death sentence, without regard to whether the prosecutor actually sought the imposition of the death penalty?”

Adopting arguments advanced by the Public Defender in three death penalty cases now pending before us,⁹ Tichnell maintains that the pool of cases under § 414 (e) (4) from which "similar cases” are to be selected for purposes of proportionality review was intended by the legislature to include all cases in which the prosecutor sought the death penalty, whether it was imposed or not. Also to be included, Tichnell maintains, are all other death-eligible murder cases in which the prosecutor could have, but did not seek the death penalty.¹⁰ To restrict the relevant inventory to cases in which the death penalty was actually sought, it is argued, would skew the proportionality review pool by excluding from it a number of truly similar cases and, conversely, by including in it cases which, in large urban jurisdictions like Baltimore City, would not have been prosecuted as capital offenses. Tichnell further suggests that even murders which cannot be punished capitally under § 413 may be similar to the death sentence under review and are, therefore, within the formulation of § 414 (e) (4).

The State maintains that the relevant inventory of cases under § 414 (e) (4) includes only those in which a capital sentencing proceeding was actually conducted, whether the sentence imposed was life or death. In this regard, the State submits that because the aim of proportionality review is to ascertain what other capital sentencing authorities have done with similar capital murder offenses, the only cases that could be deemed similar under § 414 (e) (4) are those in which imposition of the death penalty was properly before the sentencing authority for determination. The State urges that it is improper to use every first degree murder case as a basis for comparison because cases in which no qualifying aggravating circumstances under § 413 are present could not be prosecuted capitally and are, therefore, patently dissimilar. Moreover, the State argues that cases in which the death penalty was not sought, despite the presence of a qualifying aggravating factor under § 413, are not similar because the sentencing authority never considered whether the death sentence should be imposed.

Twenty-five states have statutes or rules containing a proportionality review provision identical to or closely paralleling § 414 (e) (4) of the Maryland statute.¹¹ Of these, three states limit their pool of cases for comparative review to capital offenses in which the death penalty was actually imposed. See Gall v. Com., 607 S.W.2d 97 (Ky. 1980); King v. State, 421 So.2d 1009 (Miss. 1982); State v. Copeland, S.C., 300 S.E.2d 63 (1982). Eight states by case law appear to restrict the universe of cases eligible for proportionality review to similar capital murder prosecutions, whether the penalty imposed was life or death. See Georgia: Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982); Hill v. State, 250 Ga. 277, 295 S.E.2d 518 (1982); Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974);¹² Missouri: State v. Trimble, 638 S.W.2d 726 (1982); State v. Baker, 636 S.W.2d 912 (1982); State v. Bolder, 635 S.W.2d 673 (1982); State v. McIlvoy, 629 S.W.2d 333 (1982); State v. Mercer, 618 S.W.2d 1 (1981); Montana: State v. Coleman, 605 P.2d 1000 (1979), rehearing denied, 605 P.2d 1051; Nebraska: State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982); State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979); Nevada: Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979); North Carolina: State v. Williams, 308 N.C. 47, 301 S.E.2d 335 (1983); State v. McDougall, 308 N.C. 1, 301 S.E.2d 308 (1983); Oklahoma: Parks v. State, 651 P.2d 686 (Crim. App. 1982); Jones v. State, 648 P.2d 1251 (Crim. App. 1982); Virginia: Clanton v. Com., 223 Va. 41, 286 S.E.2d 172 (1982); Whitley v. Com., 223 Va. 66, 286 S.E.2d 162 (1982); Stamper v. Com., 220 Va. 260, 257 S.E.2d 808 (1979); Coppola v. Com., 220 Va. 243, 257 S.E.2d 797 (1979). Washington, by statute, restricts its proportionality review to similar capital cases in which the sentencing authority considered the imposition of the death penalty.¹³ Tennessee, by statute and rule, appears to follow the same course.¹⁴ The interpretation of the proportionality review provisions of the Alabama and Louisiana statutes is unclear. See, e.g., Beck v. State, 396 So.2d 645 (Ala. 1981) and State v. Martin, 376 So.2d 300 (La. 1979). Ten other states having a provision like § 414 (e) (4) have no case law articulating the relevant universe of cases for purposes of proportionality review.¹⁵

The comparative review provision of Delaware’s statute differs from § 414 (e) (4) in that it provides for proportionality review to determine whether, in light of the totality of the aggravating and mitigating circumstances, and other factors, the death penalty was disproportionate to the penalty imposed "in similar cases arising under this section.” ¹⁶ (Emphasis supplied.) See State v. White, 395 A.2d 1082 (Del. 1978).¹⁷

A number of states have death penalty statutes without an express proportionality review provision. These jurisdictions nevertheless engage in various modes of comparative review of death sentences. Arizona, Florida, Illinois and Indiana appear to limit their proportionality pool of similar cases to capital murder offenses, whether the sentence imposed was life or death. State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1981); State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976); Brown v. Wainwright, 392 So.2d 1327 (Fla. 1981); McCaskill v. State, 344 So.2d 1276 (Fla. 1977); People v. Brownell, 79 Ill.2d 508, 404 N.E.2d 181 (1980); People v. Glecker, 82 Ill.2d 145, 411 N.E.2d 849 (1980); Williams v. State, 430 N.E.2d 759 (Ind. 1982); Judy v. State, 416 N.E.2d 95 (Ind. 1981). Arkansas restricts its inventory to cases in which the death penalty was actually imposed. See Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981); Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). California’s situation is more fluid; it studies various aspects of each death sentence to assure that it is imposed in an even-handed manner and that the crime is not punished more severely than more serious offenses. See People v. Jackson, 28 Cal.3rd 264, 168 Cal. Rptr. 603, 618 P.2d 149 (1980); People v. Frierson, 25 Cal.3rd 142, 158 Cal. Rptr. 281, 599 P.2d 587 (1979). See also Harris v. Pulley, 692 F.2d 1189 (9th Cir. 1982), cert. granted, U.S. (1983). Texas and Utah’s proportionality review procedures appear to be similar to those followed in California. See Jurek v. Texas, supra; Roney v. State, 632 S.W.2d 598 (Tex. Cr. 1982); State v. Pierre, 572 P.2d 1338 (Utah, 1977).

Considering the purpose of proportionality review in death sentence cases, the language of § 414 (e) (4), the law in other jurisdictions with proportionality review provisions like our own, and the views expressed by legal commentators,¹⁸ we conclude that the legislatively intended inventory of cases from which "similar cases” are to be culled encompasses only those first degree murder cases in which the State sought the death penalty under § 413, whether it was imposed or not. This interpretation of § 414 (e) (4) is consistent with the implementing provisions of Maryland Rule 772A which requires, for purposes of proportionality review, that trial judges file detailed informational reports only in such cases.

The focus of § 414 (e) (4) is upon capital cases in which the sentencing authority determined whether to impose a life or death sentence; the subsection aims to assure that upon consideration of both the crime and the defendant the aggravating and mitigating circumstances present in one capital case will lead to a result similar to that reached under similar circumstances in another capital case, thus identifying the aberrant sentence and avoiding its ultimate imposition. This, of course, is the constitutional purpose of proportionality review as articulated in Gregg and Proffítt and as to which we think the General Assembly intended to subscribe in enacting § 414 (e) (4). No case is potentially similar within the contemplation of the statute, therefore, unless the death penalty was an authorized punishment. Thus, § 414 (e) (4) does not require a comparative review of capital cases in which the sentencing authority considered the imposition of the death penalty with non-capital cases in which it did not; indeed, such a comparison would not be of "similar cases.”

At our direction, the parties next considered the question whether the pool of cases available for proportionality review under § 414 (e) (4), as we have defined it, is so limited as to render that section violative of the state or federal constitutions. As we have already observed, the Supreme Court in Gregg and Proffitt indicated that the comparative review of death sentences required by the constitution need not include nonappealed capital cases where a life sentence was imposed, homicide cases where a capital conviction was not obtained, or those in which the defendant was convicted of a lesser offense. Implicit in these Supreme Court cases is the conclusion that to include in the relevant inventory of cases only those in which the death penalty was sought does not violate the due process or cruel and unusual punishment provisions of the federal constitution. The cases are generally in accord. See Gray v. Lucas, 677 F.2d 1086 (5th Cir. 1982); Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974), cert. denied, 428 U.S. 910 (1976); Williams v. State, 430 N.E.2d 759 (Ind.), appeal dismissed, 103 S. Ct. 33 (1982); State v. Bolder, 635 S.W.2d 673 (Mo. 1982), cert. denied, 103 S. Ct. 770 (1983); State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979), cert. denied, 449 U.S. 891 (1980); State v. Williams, 308 N.C. 47, 301 S.E.2d 335 (1983); State v. Copeland, S.C. , 300 S.E.2d 63 (1982), cert. denied, 103 S. Ct. 1802 (1983); State v. Melson, 638 S.W.2d 342 (Tenn. 1982). Nothing in the Maryland Constitution requires a different result. In so concluding, we do not preclude any defendant whose death sentence is under appellate review from presenting argument, with relevant facts, that designated non-capital murder cases are similar to the case then under scrutiny and should be taken into account in the exercise of our proportionality review function.

Also at our direction the parties briefed and argued two other questions: Whether the relevant inventory of similar cases is (1) limited to those decided under constitutional death penalty statutes and (2) restricted to cases arising in Maryland. We conclude, as we intimated in Tichnell I, supra, 287 Md. at 742 and cases there cited, that the better rule is to restrict the comparative analysis to cases decided under constitutional death penalty statutes and to those decided under our own State law.

Finally, we directed that the parties inform us as to the factors or criteria governing proportionality review in other jurisdictions having death penalty statutes. The question, the parties suggest, and we agree, does not admit of a definitive response. In general, the proportionality review function is conducted by other jurisdictions, as it will be in Maryland, in accordance with the fundamental constitutional principle of avoiding the arbitrary or capricious imposition of the death penalty by affording similar treatment to similar capital cases, considering both the crime and the defendant.

VI

(The Death Sentence In This Case)

Having exercised our constitutionally mandated proportionality review function, we conclude that the death sentence imposed upon Tichnell was neither excessive nor disproportionate to the penalty imposed in similar cases in Maryland, considering both the crime and the defendant.

The wilful, deliberate and premeditated murder of a police officer while in the performance of his duties has long been viewed as an especially grievous crime. In Roberts v. Louisiana, 431 U.S. 633, 636, 97 S. Ct. 1993, 52 L. Ed. 2d 637 (1977), the Supreme Court said: "To be sure, the fact that a murder victim was a police officer performing his regular duties may be regarded as an aggravating circumstance [in death penalty statutes].” ¹⁹ Such a killing constitutes an assault on society itself for, as stated in Roberts, at 636, "There is a special interest in affording protection to these public servants who regularly must risk their lives in order to guard the safety of other persons and property.” ²⁰

That Tichnell had not previously been convicted of a crime of violence was a mitigating circumstance in his favor; indeed, it was the single mitigating factor found by the sentencing jury which concluded that it did not outweigh the two aggravating factors present in the case. Manifestly, the sentencing authority rejected Tichnell’s self-defense version of the killing — a version given little more than lukewarm support by the testimony of Recek. The evidence showed that Tichnell was a mature man, that he was armed when he came to the crime scene, and fully expected that the deputy would respond promptly to the silent alarm. From its findings, it is readily apparent that the sentencing jury believed that the killing of Deputy Livengood was intentional and in furtherance of Tichnell’s purpose to avoid apprehension. That several of the fatal shots were fired into the deputy’s back may have suggested to the jury that Tichnell ambushed the officer from behind while he was in the process of apprehending Recek.

Since the enactment of Maryland’s death penalty statute in 1978, to the present time, forty-eight capital sentencing proceedings have been conducted in seventeen of the State’s twenty-four circuit courts, involving forty-one different defendants.²¹ See Appendix A. While some of the cases involved multiple aggravating circumstances, the primary aggravating factor in a number of cases was that the murder was committed in the course of a robbery. Other cases involved murders committed in the course of a rape or sexual offense in the first degree; one case involved murder committed in the performance of an arson. Two cases involved contract murders. The aggravating circumstance in still other cases was that the defendant committed more than one first degree murder arising out of the same incident. Four cases charged, as aggravating circumstances, that a police officer was murdered while in the performance of his duties and in furtherance of an escape, or attempt to escape from or evade the officer’s lawful apprehension. In other cases, the aggravating circumstance was that the victim was a hostage taken in the course of a kidnapping.

Of the sentencing proceedings in these cases, twenty-eight resulted in the imposition of a life sentence, either by determination of the sentencing authority, by a deadlocked jury, or because of the inability of the jury to agree on a verdict within a reasonable time. See § 413 (k). Twenty capital sentencing proceedings, involving fifteen different defendants, resulted in the imposition of the death penalty. Of these, the Court has vacated the death penalty in nine proceedings because of error committed either at the trial stage of the proceedings or because of errors committed in the capital sentencing hearing; these cases were remanded for a new sentencing hearing. Of the remaining eleven cases, one was terminated by the suicide of the defendant. In another case, the trial judge vacated the death sentence and ordered a new sentencing hearing. In addition to Tichnell III, eight cases are now pending before us on appeal.

In the process of our proportionality review in this case, we reviewed the Rule 772A trial judge’s report in each of the capital sentencing proceedings and have selected five which we deem to be "similar” within the contemplation of § 414 (e) (4).

Oscar Recek: Recek was charged with capital murder. The State relied upon the same two aggravating circumstances that were present in Tichnell’s case. At his trial, Recek testified essentially as he did at Tichnell’s third sentencing hearing. He also introduced Tichnell’s trial testimony as well as Tichnell’s confessions, all of which indicated that it was Tichnell, and not Recek, who shot and killed the deputy.²² The jury found Recek guilty of felony murder. At the sentencing hearing the jury found one aggravating circumstance to exist — that the murder was of a police officer in the performance of his duties. § 413 (d) (1). It did not find that, as to Recek, the murder was committed in furtherance of an escape or attempt to escape or evade lawful custody or arrest by a police officer. § 413 (d) (3). The jury found one mitigating circumstance — that Recek’s act was not the sole proximate cause of the deputy’s death. § 413 (g) (6). The jury imposed a life sentence.

Harlow Sails: The defendant, age 21 at the time of the offense, was convicted of premeditated capital murder of an off duty police officer in the course of an armed robbery. The State relied upon three aggravating circumstances: that the murder was of a law enforcement officer in the performance of his duties; that it was committed in furtherance of an escape or attempt to escape from or evade the lawful apprehension of a police officer; and that the murder was committed in the course of a robbery. § 413 (d) (1), (3), and (10). The evidence indicated that the officer, who was not in uniform, attempted to apprehend Sails and several confederates in the course of an armed robbery, during which Sails shot the officer to death in an exchange of gunfire. The evidence indicated that Sails did not know that the victim was a police officer. The sentencing jury found that all three aggravating circumstances relied upon by the State had been established. By way of mitigating circumstances, it found that Sails had no previous record of committing a crime of violence; that the murder was committed while Sails’ capacity to appreciate the criminality of his conduct or to conform his conduct to requirements of law was substantially impaired as a result of mental incapacity, mental disorder, emotional disturbance or intoxication; that it was unlikely that Sails would engage in further criminal activity that would constitute a continuing threat to society; and that other specified mitigating circumstances existed. § 413 (g) (1), (4), (7), and (8).²³ The jury imposed a life sentence.

James Calhoun: The defendant, age 28 at the time of the crime, was convicted of the premeditated first degree murder of a Montgomery County police officer who had responded to a security alarm at a mercantile establishment. The officer, in company with the assistant manager of the store, and a representative of the burglar alarm system, entered a room inside the store where Calhoun, and an accomplice, had concealed themselves. Calhoun pressed a gun against the officer’s head and shot him to death. Calhoun’s accomplice, Curtis Monroe, shot and killed the alarm system representative and wounded the assistant manager. Calhoun and Monroe fled after taking money from the store. The jury determined that the three aggravating circumstances charged by the State had been proved (the same aggravating circumstances as were relied upon in the Sails case). The jury found one mitigating circumstance under § 413 (g) (8), i.e., that Calhoun’s background was such that he was never integrated into society and was unable to conform with its norms and moral values. The jury imposed a death sentence.

Curtis Monroe: The defendant, age 24 at the time of the offense, was convicted of the premeditated murder of the burglar alarm technician. The court, as the sentencing authority, found that the murder was committed in the course of a robbery. § 413 (d) (10). As mitigating circumstances, the court found it unlikely that the defendant would engage in further criminal activity that would constitute a continuing threat to society. § 413 (g) (7). The court also found as mitigating factors under § 413 (g) (8) that the defendant was employed, had a wife and two children, was attempting to further his education, and that his crime was not greater than that committed by other individuals who did not receive the death sentence. The court sentenced Monroe to life imprisonment.

Jackie Hughes: The defendant, almost 30 years old at the time of the crime, was convicted of the premeditated murder of a restaurant employee. The employee, who was armed, was walking to a bank to make a cash deposit when Hughes approached him from behind, spun him around and shot him. Thereafter, Hughes took the victim’s money. In the course of their encounter, the employee fired several shots at Hughes but Hughes escaped. The victim subsequently died. The sentencing jury determined that the aggravating factor relied upon by the State (murder in the course of a robbery) was proved; it found, by way of mitigating circumstances, that Hughes had not previously been convicted of a crime of violence and that other unspecified mitigating factors existed under § 413 (g) (8). The jury imposed a life sentence.

We recognize that dissimilarities exist between Tichnell’s case and those selected for comparative review. That these cases, as well as others in the inventory, are not more similar to Tichnell’s case obviously does not mean that we cannot complete the comparative review process mandated by § 414 (e) (4); to so conclude would ascribe to the legislature an intention not to enact an effective or operative death penalty statute.

Of the cases reviewed only Calhoun’s crime resulted in a death sentence. The aggravating circumstances present in that case closely parallel those present in Tichnell’s case; the single mitigating circumstance in Tichnell’s case would appear to be marginally weightier than that found to exist in Calhoun’s case. Monroe was not a principal in the first degree killing of the police officer; his life sentence was based on the virtually simultaneous murder of the technician in the course of the robbery. While the life of a police officer is no more precious than that of the alarm technician, Monroe’s mitigating circumstances were different than those present in Tichnell’s case and, arguably, more substantial. Only one aggravating circumstance was found to exist in Recek’s case, and the mitigating circumstance was different than in Tichnell’s case; moreover, the sentencing jury’s verdict sheet makes clear that it did not believe that Recek was a first degree principal in the deputy’s death. Hughes, the least similar of the cases reviewed, involved a sudden episode of premeditated murder of an unsuspecting victim by an individual without a prior record of a crime of violence, as in Tichnell’s case. The mitigating circumstances found to exist in Sails’ case were far weightier than those in any of the other cases, including Tichnell’s. Moreover, although Sails’ murder of the officer was premeditated, he did not know that the victim was a police officer.

Our comparative review of these similar cases is, of course, designed to avoid caprice in the decision to inflict capital punishment. However, as pointed out in Gregg, 428 U.S. at 203, "the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.” Maryland’s death penalty statute encompasses a well-defined subclass of first degree murders and, with one exception (contract murder), the death sentence may only be imposed on first degree principals. We think the Maryland statute meets the Gregg test in that its provisions do not create a substantial risk of arbitrariness or caprice in the capital sentencing process.

The death sentence in Tichnell’s case being neither excessive nor disproportionate under § 414 (e) (4), it must be affirmed.

Judgment affirmed, with costs.

[[Image here]]

[[Image here]]

[[Image here]]

1 . Tichnell has appended to his brief an affidavit of his mother, which was executed three months after the death sentence had been imposed on her son. The affidavit states that two jurors approached his mother during the course of the sentencing proceeding, questioned her as to the identity of her companions, and said the information would be helpful in making their decision. Tichnell suggests that this alleged incident has some bearing on his argument that the voir dire was ineffective, although from the discussion in his brief, its significance is unclear. In any event, the affidavit was never presented to the trial court; therefore, it is not before this Court for consideration. See Sturgis v. State, 235 Md. 343, 346, 201 A.2d 681, 682 (1964); Maryland Rule 885.

2 . The provision is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

3 . The aggravating circumstances are:

"(1) The victim was a law enforcement officer who was murdered while in the performance of his duties.

(2) The defendant committed the murder at a time when he was confined in any correctional institution.

(3) The defendant committed the murder in furtherance of an escape or an attempt to escape from or evade the lawful custody, arrest, or detention of or by an officer or guard of a correctional institution or by a law enforcement officer.

(4) The victim was a hostage taken or attempted to be taken in the course of a kidnapping or abduction or an attempt to kidnap or abduct.

(5) The victim was a child abducted in violation of § 2 of this article.

(6) The defendant committed the murder pursuant to an agreement or contract for remuneration or the promise of remuneration to commit the murder.

(7) The defendant engaged or employed another person to commit the murder and the murder was committed pursuant to an agreement or contract for remuneration or the promise of remuneration.

(8) At the time of the murder, the defendant was under sentence of death or imprisonment for life.

(9) The defendant committed more than one offense of murder in the first degree arising out of the same incident.

(10) The defendant committed the murder while committing or attempting to commit robbery, arson, or rape or sexual offense in the first degree.”

4 . The mitigating circumstances are:

"(1) The defendant has not previously (i) been found guilty of a crime of violence; (ii) entered a plea of guilty or nolo contendere to a charge of a crime of violence; or (iii) had a judgment of probation on stay of entry of judgment entered on a charge of a crime of violence. As used in this paragraph, 'crime of violence’ means abduction, arson, escape, kidnapping, manslaughter, except involuntary manslaughter, mayhem, murder, robbery, or rape or sexual offense in the first or second degree, or an attempt to commit any of these offenses, or the use of a handgun in the commission of a felony or another crime of violence.

(2) The victim was a participant in the defendant’s conduct or consented to the act which caused the victim’s death.

(3) 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.

(4) The murder was committed while the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of mental incapacity, mental disorder, emotional disturbance, or intoxication.

(5) The youthful age of the defendant at the time of the crime.

(6) The act of the defendant was not the sole proximate cause of the victim’s death.

(7) It is unlikely that the defendant will engage in further criminal activity that would constitute a continuing threat to society.

(8) Any other facts which the jury or the court specifically sets forth in writing that it finds as mitigating circumstances in the case.”

5 . Section 413 (e) (1) of the statute makes clear that only a principal in the first degree is subject to the death penalty, except where the aggravating circumstance charged is that outlined in § 413 (d) (7). A principal in the first degree "is one who actually commits a crime, either by his own hand, or by an inanimate agency or by an innocent human agent.” State v. Ward, 284 Md. 189, 197, 396 A.2d 1041 (1978).

6 . The verdict form provides space permitting the sentencing authority to state, in writing, any other mitigating circumstances which it may find in addition to the specifically listed mitigating circumstances outlined in § 413 (g).

7 . Section 414 (b) of the statute requires that the clerk of the trial court, in transmitting the record of the capital sentencing hearing, include the report of the trial judge, which is to contain "a recommendation by the trial court as to whether or not imposition of the sentence of death is justified in the case.”

8 . The "Committee note” appended to Rule 772A states that "[i]n the case of a life sentence the report of the judge is filed with the Clerk of the Court of Appeals only for informational purposes to permit that Court to make the determination in other cases required by Code, Article 27, § 414 (e) (4),” i.e., the proportionality review provision of the statute.

9 . See consolidated Supplemental Brief of the Public Defender in Annette Louise Stebbing v. State of Maryland, Nos. 35 and 103, September Term, 1981; Eugene Sherman Colvin v. State of Maryland, Nos. 84 and 114, September Term, 1981; and James Arthur Calhoun v. State of Maryland, No. 129, September Term, 1981 and No. 5, September Term, 1982.

10 . Capital murder is an offense for which the death penalty may but need not be imposed. See Black’s Law Dictionary 189 (5th ed. 1979); Ballentine’s Law Dictionary 173 (3rd ed. 1969).

11 . The states are: Alabama, Connecticut, Georgia, Idaho, Kentucky, Louisiana, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Virginia, Washington, and Wyoming.

12 . The Ross and Horton cases give some indication that occasionally the court compares other murder cases in the courts of its proportionality review.

13 . See Wash. Rev. Code § 10.95.130 (2) (b).

14 . See Tenn. Code Ann. § 39-2-205 (c) and Supreme Court Rule 12.

15 . The states are: Connecticut, Idaho, Massachusetts, New Hampshire, New Jersey, New Mexico, Ohio, Pennsylvania, South Dakota, and Wyoming. See, however, Com. v. Zettlemoyer, 454 A.2d 937 (Pa. 1982).

16 . See Del. Code Ann. Tit. 11, § 4209 (g) (2) a.

17 . Colorado’s proportionality review provision is also different from Maryland’s but no cases have as yet interpreted that state’s law on the

18 . Legal commentators have expressed the view that the death sentence is comparatively excessive if other defendants with similar characteristics generally receive sentences other than death for committing factually similar offenses in the same jurisdiction. See D. Baldus, C. Pulaski, G. Woodworth and F. Kyle, Identifying Comparative Excessive Sentences of Death: A Quantitative Approach, 33 Stan. L. Rev. 1 (1980). While the authors caution against making the universe of cases so large as to render it impossible to conduct any meaningful proportionality review, they suggest that the case inventory include a sufficient number of potentially similar murder cases where both life and death sentences were imposed. Id. at 7 n. 15; they urge that courts compare, "at a minimum,... the facts and circumstances of the death sentence case under scrutiny with the facts and circumstances of factually similar cases involving similar defendants in which the options available to the sentencing authority included a sentence of death.” Id. at 5 n. 13.

19 . Compare cases in which the Supreme Court, applying the principle of constitutional proportionality, has declared capital punishment per se excessive in certain circumstances. See Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) (death penalty excessive for felony murder when defendant did not take or attempt to take life or intend that a life be taken or that lethal force be used); Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) (sentence of death disproportionate and excessive punishment for the crime of rape).

20 . In Roberts, the Supreme Court noted the dangerous nature of the police officer’s calling; it indicated that statistics demonstrated that the number of police officers killed in the line of duty more than doubled in the last 10 years. 431 U.S. at 636 n. 3.

21 . In addition to Tichnell’s 3 capital sentencing hearings, Timothy Clyde Poole also had 3 capital sentencing hearings. See Poole v. State, 290 Md. 114, 428 A.2d 434 (1981); Poole v. State, 295 Md. 167, 453 A.2d 1218 (1983).

22 . See Recek v. State, No. 828, September Term, 1980, Court of Special Appeals, unreported. The evidence in the case clearly indicated that Recek was not a first degree principal in the deputy’s murder.

23 . The other mitigating circumstances were that Sails’ criminal activity "had not been characterized by gratuitous and sadistic physical violence against persons”; that Sails was "not a sadistic executioner style killer”; and that his background and upbringing was unstable and "marked by emotional trauma, neglect and inattention, and which lacked adequate guidance and supervision contributed to his criminal conduct.”