Ayers v. State, No. 84

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued before MURPHY; MURPHY; BELL
• Citation: 645 A.2d 22,335 Md. 602
• Parties: John Randolph AYERS, Jr. v. STATE of Maryland. ,
• Docket Number: No. 84
• Decision Date: 01 September 1993

Page 602

335 Md. 602 645 A.2d 22 John Randolph AYERS, Jr.
v.
STATE of Maryland. No. 84, Sept. Term, 1993. Court of Appeals of Maryland. July 21, 1994.

[645 A.2d 24]

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Victor L. Crawford, Assigned Public Defender, (Wendy Satin, on brief), Rockville (Stephen Harris, Public Defender, on brief), Baltimore (Denise Oakes Shaffer, George S. Lemieux, both on brief), Washington, DC, for petitioner.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

MURPHY, Chief Judge.

This case involves Maryland's "hate crimes" statute, Maryland Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.) Art. 27, § 470A; subsection (b) thereof makes it a criminal offense to:

"(3) Harass or commit a crime upon a person or damage the real or personal property of:

"(i) A person because of that person's race, color, religious beliefs, or national origin...."

Section 470A(c) sets forth penalties for those who violate subsection (b); it provides:

"(1) If the violation involves a separate crime that is a felony, the person is guilty of a felony and upon conviction is subject to imprisonment for not more than 10 years, or a fine of not more than $10,000, or both.

"(2) If the violation involves a separate crime that is a felony and results in death to a victim, the person is guilty of a felony and upon conviction is subject to imprisonment

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for not more than 20 years, or a fine of not more than $20,000, or both.

"(3) In all other cases, the person is guilty of a misdemeanor and upon conviction is subject to imprisonment for not more than 3 years, or a fine of not more than $5,000, or both."

Subsection (d) further provides:

"(d) --Prosecution of a person under this section does not preclude prosecution and imposition of penalties for any other crime in addition to any penalties imposed under this section."

[645 A.2d 25] I

John Randolph Ayers was indicted in the Circuit Court for Montgomery County for, inter alia, assault, assault with intent to maim, kidnapping, conspiracy to commit a racially motivated crime, and committing a racially motivated crime in violation of § 470A(b)(3)(i). The alleged victim of these crimes was Johnnie Mae McCrae. Ayers was also indicted for like offenses alleged to have been committed against Myrtle Guillory. The counts of the indictment which charged Ayers with having violated § 470A(b)(3)(i) stated that he "unlawfully did commit a crime upon ... [the named victim] because of her race, said crime being a felony."

Ayers moved to dismiss the counts charging him with committing and conspiring to commit racially motivated crimes against Guillory and McCrae. He contended that § 470A(b)(3)(i) was unconstitutional as being "vague and not susceptible to clear understanding and therefore void." Moreover, he asserted that the statute violated the First Amendment of the Federal Constitution and the Maryland Declaration of Rights as it attempted to regulate free speech. Ayers relied upon the Supreme Court's decision in R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), to support his position that § 470A(b)(3)(i) was unconstitutional as violative of "free speech and freedom of expression."

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At the hearing on the motion, Ayers maintained that "no matter how horrendous, no matter how distasteful the speech or the expression might be, there is freedom to make it." He pointed to the words of the statute which make it a crime to "harass or commit a crime upon a person ... because of that person's race, color, religious belief or national origin." Ayers argued that a state cannot constitutionally enact a content-based law which prohibits free speech. He maintained that content-based regulations are presumptively invalid and that bias-motivated speech, no matter how reprehensible, "does not justify selectively silencing speech on the basis of content." The court (Ruben, J.) denied the motion and the case proceeded to trial before a jury.

II

The evidence at trial disclosed that on the evening of March 2, 1992, Ayers, age 22, and a friend, Sean Riley, age 20, were at Ayers's home, in the Aspen Hill section of Silver Spring, assembling a shed in the back yard and drinking beer. They worked on the shed until about 10:30 p.m. when Ayers's parents asked them to stop for the evening so they would not disturb the neighbors. The two men continued drinking beer in the house until about 12:30 a.m., finishing approximately three six-packs. They then drove Ayers's girlfriend home and at approximately 1 a.m. purchased more beer, after which they returned to Ayers's home to drink and watch television in the garage. It was during this period that Ayers and Riley, both of whom are white, discussed an incident of a racial nature which occurred at an area 7-Eleven store several nights earlier on February 29. There was evidence that the incident began when Ayers was behind a group of black teenagers in the checkout line at the store, waiting to purchase a case of beer; that Ayers bumped into one of the teenagers, after which he threw down the beer and abruptly left the store; that Ayers and Riley got into their car, made gestures with their fists, drove off and then returned to the store a few minutes later; that Ayers confronted one of the black teenagers, Terry Barbour, saying, "What did you say to me, nigger?"

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; that Barbour was then knocked down; that Ayers shouted racial epithets, such as "nigger" and "black motherfucker"; and that Ayers then chased a black female teenager, in the course of which he called her a "black bitch," a "nigger," and a "black motherfucker."

After discussing the earlier racial confrontation at the 7-Eleven store, Ayers and Riley left Ayers's house at 2 a.m. on March 3 to look for black people to beat up. They soon observed two black women walking on Georgia Avenue. They stopped the vehicle and began walking behind the women. After the women began to run, the two men chased them. The women separated. Riley chased [645 A.2d 26] one of the women, Myrtle Guillory; Ayers chased the other, Johnnie Mae McCrae.

Guillory testified at the trial that as she ran she looked back, saw Ayers grab McCrae and heard McCrae scream. She testified that as Riley chased her, he yelled repeatedly, "I'm going to kill you, you black bitch." She said Riley grabbed her from behind, but she got away when he was distracted by a passing car. Guillory said she ran toward the home of David Davis, a friend. When Guillory reached Davis's yard, she began screaming for help. She ran up to the porch and began banging on the door. Davis opened the door and Riley fled.

Davis testified that he called 911 to summon the police, and an officer arrived promptly at his house. The officer took Guillory in his car to search for McCrae, during which he observed Riley walking across Georgia Avenue. After Guillory identified Riley as the man who had chased her, the officer apprehended him. When the officer patted down Riley, he found a container of charcoal lighter fluid inside his jacket.

Simultaneously with these events, Ayers had caught McCrae and dragged her into a wooded area off Georgia Avenue. Subsequently, another police officer arrived on the scene and McCrae was observed running out of the wooded area crying for help. She appeared hysterical, was naked from the waist up, and was bleeding from the head. Her

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pants were wet. Police gave her a raincoat and placed her in a police cruiser. Other officers and medical personnel arrived. Officers who spoke with McCrae described her as being in shock. Several officers noted what they believed was the smell of lighter fluid on McCrae's person. The police took McCrae to a hospital.

McCrae testified that as she ran from Ayers, she fell, and Ayers grabbed her by the back of her coat collar and dragged her into the woods. She said that he began "banging her head" and told her he was going to kill her. She remembered nothing that happened after that until she was being led to an ambulance by police.

There was evidence that after Guillory identified the car driven by the two men, the police searched the vehicle, which belonged to Riley's grandmother. They found Riley's and Ayers's wallets in the glove box. The officers then searched the wooded area from which McCrae had emerged and found bloodstains, a coat, a wig, and a sweater, later identified as McCrae's. The sweater was found in a small creek which ran through the wooded area.

At approximately 3:20 a.m., police went to Ayers's house. They found him wearing bloodstained blue jeans; he also had blood on his hands and forearms. Ayers was taken into custody and thereafter signed a statement admitting that it had been his idea to attack the women. He admitted that he dragged McCrae "off the sidewalk of Georgia Avenue" and that he had sprayed her legs with lighter fluid "to scare her." In his statement, Ayers said that McCrae fell into a bush as he dragged her "from Georgia Avenue onto a bridge or trestle." He said "I was holding onto her while we were on the bridge/trestle and I noticed the roof lights of the police car nearby. I let go of her and ran. She fell into the creek at that point. When I grabbed her collar earlier, her jacket came off. I don't recall removing any other pieces of her clothing."

Testifying as a State's witness, Riley said that Ayers and he set out that night to go "nigger hunting" because they were

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angry about the 7-Eleven incident, which had occurred several days earlier on February 29. ¹ When asked to summarize "the nature of the confrontation," defense counsel objected. At a bench conference, defense counsel told the court that "there is another charge pending evidently of an altercation of a racial nature" which occurred at that time and that asking Riley "to go into the whole thing is...