Maryland's highest court yesterday upheld the state's 1978 capital punishment law in the statute's first test before the appellate courts. But the court set aside the first death sentence imposed under the law, citing specific circumstances in the defendant's case.

Within the ruling, the law survived the constitutional challenge brought by Richard D. Tichnell, who was convicted of murdering a Western Maryland sheriff's deputy and sentenced last year to die in the state's gas chamber.

The Maryland Court of Appeals upheld Tichnell's murder conviction but found that, because of an "ambiguous" remark made by the sentencing judge, the "imposition of the death sentence was influenced by an arbitrary factor" and thus must be set aside. Tichnell will get a new sentencing hearing and could again be sentenced to death.

On the larger question of the statute's constitutionality, the court ruled that the death penalty law "satisfies the requirements of the Eighth and 14th amendments to the federal Constitution and Article 25 of the Maryland Declaration of Rights."

The Eighth Amendment and Article 25 prohibit "cruel and unusual punishment"; the 14th Amendment guarantees due process under law.

The court also found that the Maryland statute complies with the general methods for determining sentence and the "safeguards" incorporated in other states' laws that have been previously upheld by the U.S. Supreme Court.

All of these statutes routine particular circumstances under which the death penalty may be imposed to guide the judge or jury in their decision.

They also provide a two-tiered trial in capital punishment cases: one to deal with the question of guilt or innocence and a second to determine whether or not the defendant should be sentenced to death.

The third "major safeguard" against arbitrary imposition of the death sentence incorporated in the Maryland statute, according to the court opinion, is the speedy, automatic appeal of all death sentences to the state's highest court.

The director of the American Civil Liberties Union's capital punishment project, learning of yesterday's ruling, argued that even under laws upheld by the Supreme court, "the death penalty continues to be imposed in a dramatically arbitrary and discriminatory fashion."

"As an illustration, just look at Richard Tichnell's case," said New York City lawyer Henry Schwarzschild. "Is it really seriously argued that Tichnell's crime was so singularly outrageous that he and the one other person on [Maryland's] death row are the only appropriate victims of the death sentence? There are obviously lots of serious crimes where it could have been imposed and wasn't."

Tichnell, a 33-year-old former Army paramedic from Fairmont, W.Va., was convicted last August of murdering Garrett County Sheriff's Deputy David Livengood, who was attempting to arrest Tichnell and a companion after a robbery in the Western Maryland town of Oakland.

Tichnell admitted that he killed Livengood, but argued that he shot in self-defense after he was attacked by Livengood's 108-pound police dog and then was shot in the shoulder by the deputy.

The jury did not believe Tichnell's version of the shooting and, based on evidence presented by the prosecution, found him guilty of premeditated murder, according to the appellate opinion.

The trial was moved to Wiscomico County on the Eastern Shore at the request of the defense.

Under Maryland's death penalty law, after a first-degree murder conviction a special sentencing hearing is held, and the defendant himself decides whether he wants the judge or jury to hold it and impose sentence.

Tichnell argued in his appeal that he chose Judge Richard L. Pollitt to decide his fate because Pollitt had remarked in his chambers to the prosecutor and defense attorney, "I am not sure this is a death penalty case." p

Although there was some dispute over the judge's precise words, the appeals court held that the remark was ambiguous enough to warrant a new sentencing hearing in the case.

Assistant Maryland Attorney General Deborah Handel said the appeals court, while turning aside most of Tichnell's constitutional challenge, left one constitutional question open for future argument. Tichnell argued that Maryland juries are given too much discretion in determining when to impose the death penalty. Because a judge imposed Tichnell's sentence, the court failed to rule on this question.

The last execution in Maryland was carried out at the State Penitentiary in Baltimore in 1961.