387 A.2d 306 (Md.App. 1978), 1069, von Lusch v. State

Docket Nº:1069.
Citation:387 A.2d 306, 39 Md.App. 517
Opinion Judge:[10] Moylan
Party Name:Richard von LUSCH v. STATE of Maryland.
Attorney:[7] Philip W. Moore for appellant.
Case Date:June 09, 1978
Court:Court of Special Appeals of Maryland

Page 306

387 A.2d 306 (Md.App. 1978)

39 Md.App. 517

Richard von LUSCH

v.

STATE of Maryland.

No. 1069.

Court of Special Appeals of Maryland.

June 9, 1978

Certiorari Denied Aug. 18, 1978.

Page 307

[39 Md.App. 518] Philip W. Moore, Easton, for appellant.

W. Timothy Finan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., J. Owen Wise, State's Atty., for Caroline County and John T. Clark, III, Asst. State's Atty., for Queen Anne's County on brief, for appellee.

Argued before MORTON, MOYLAN and COUCH, JJ.

MOYLAN, Judge.

The appellant, Richard von Lusch, felt aggrieved by a form of nuisance wrought initially by Orville and Wilbur Wright but inflicted ultimately upon him as traffic in and out of a local airport flew low over his Queen Anne's County home. The redress he sought, unfortunately, was by way of invoking another nuisance wrought initially by Alexander Graham Bell and inflicted ultimately upon Julius Grollman, a neighbor of the appellant and a Queen Anne's County Commissioner responsible in part for the presence of the airport which was the source of the appellant's chagrin. The protracted zoning dispute which brought the appellant and Mr. Grollman to loggerheads is fully recounted in von Lusch v. Board of County Commissioners of Queen Anne's County, 268 Md. 445, 302 A.2d 4, and von Lusch v. Board of County Commissioners of Queen Anne's County, 24 Md.App. 383, 330 A.2d 738. The latest chapter of this contretemps was written [39 Md.App. 519] by a Caroline County jury, presided over by Judge K. Thomas Everngam, which found the appellant guilty of two counts of making repeated telephone calls with intent to annoy and harass in contravention of Article 27, Section 555A. Upon this appeal, the appellant raises essentially four contentions:

1) That Article 27, Section 555A, is unconstitutional;

2) That he should not have been convicted of two separate offenses in that both merge into a single course of repetitive conduct;

3) That the court erroneously declined to give certain jury instructions requested by the appellant; and

4) That pen register evidence was erroneously submitted.

  1. The Pen Register Evidence

    We deal initially with the contested pen register evidence. A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the phone is released. It does not overhear oral communications and does not indicate whether calls are actually completed. In this case, Leroy Fisher, the Commercial Manager of the Chesapeake and Potomac Telephone Company of Chestertown, testified that the telephone company is a private

    Page 308

    corporation. He testified that one of C. & P.'s subscribers, Julius Grollman, had complained of receiving harassing telephone calls. Mr. Fisher testified that he ordered his employees to place a pen register upon the appellant's telephone in order to corroborate the customer's complaint about having received repeated calls from the appellant. The pen register revealed, inter alia, that 43 calls were placed from the appellant's telephone to Mr. Grollman's telephone within a 7-hour period on May 5, 1974, one of the dates as to which a conviction was returned. The appellant's attack upon the pen register is twofold and neither is availing.

    1. A Pen Register is Not Covered by Title III

      Whatever doubt may once have existed, it is now clear that the purely mechanical act of dialing a particular number as revealed by a pen register is not a "communication" within [39 Md.App. 520] the contemplation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 1 This issue was laid finally to rest by the Supreme Court on December 7, 1977, by its decision in United States v. New York Telephone Company, 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376. The Supreme Court there pointed out, at 434 U.S. 166, 98 S.Ct. 369, 54 L.Ed.2d 386:

      "Title III is concerned only with orders 'authorizing or approving the interception of a wire or oral communication . . . ." . . . Congress defined 'intercept' to mean 'the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.' . . . Pen registers do not 'intercept' because they do not acquire the 'contents' of communications, as that term is defined by...

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