Clark v. State

• Decision Date: 29 January 1968
• Docket Number: No. 55,55
• Citation: 2 Md.App. 756,237 A.2d 768
• Parties: Paul Brown CLARK v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 756

2 Md.App. 756

237 A.2d 768

Paul Brown CLARK v. STATE of Maryland.

No. 55.

Court of Special Appeals of Maryland.

Jan. 29, 1968.

Robert Gordon King and Louis Peregoff, Towson, for appellant.

Donald Needle, Asst. Atty. Gen., on brief with Francis B. Burch, Atty. Gen., Baltimore, Samuel Green, State's Atty., Thomas L. Hennessey, Asst. State's Atty., for Baltimore County, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

MURPHY, Chief Judge.

On January 11, 1967, the court sitting without a jury found appellant guilty generally under two separate indictments charging arson, attempted arson, housebreaking with intent to commit a felony, housebreaking with intent to steal goods of $100.00 or more, and housebreaking with intent to steal goods under the value of $100.00. He was sentenced to a term of five years imprisonment on the arson convictions, and sentence was generally suspended on the housebreaking counts. Appellant's principal contention on this appeal is that the lower court erred in admitting in evidence the testimony of a police officer obtained by eavesdropping on an extension telephone, since such evidence was secured without appellant's permission, and in violation of the provisions of the Maryland Wire Tapping Act, Chapter 116 of the Acts of 1956, now codified as Sections 92-99 of Article 35 of the Annotated Code of Maryland (1965 Repl.Vol.).

The evidence adduced at the trial showed that on September 14, 1966, the dwelling house owned by Ronald Wheeler and his wife, Judith, was broken into and set afire. Mrs. Wheeler testified that for some months prior to the fire she had been involved romantically with the appellant. Believing that he was responsible for the crimes, she contacted appellant by phone on four occasions in an effort to have him admit his guilt. Three of these telephone conversations, made between September 29 and October 6, were monitored by Corporal Francis Hudson of the Baltimore County Police, who listened on a regularly installed extension phone in the Wheeler residence, with the Wheelers' permission, but without appellant's knowledge. Hudson testified at the trial, over appellant's objection, that during these conversations appellant admitted his complicity in the crimes.

We cannot agree that Hudson's testimony was inadmissible on the ground that it was obtained in violation of the Maryland Wire Tapping Act. That Act, which became effective on June 1, 1956, added a new subtitle to the Maryland Code entitled 'Wire-Tapping,' its purpose, according to its title, being to prohibit, inter alia, 'the obtaining or tapping of telephonic or telegraphic communications without consent' and, further, to prohibit the use of evidence 'obtained as a result of the interception of telephonic or telegraphic communications' unless secured in conformity with the provisions of the Act. The Act provides, in Section 92, that 'The right of the people to be secure against unreasonable interception of telephonic and telegraphic communications shall not be violated,' and that, except where authorized by court order, 'the interception and divulgence of a private communication by any person not a party thereto is contrary to the public policy of this State.' Section 93(a) provides, in part, that no person shall:

'(1) Obtain or attempt to obtain the whole or any part of a telephonic or telegraphic communication to which such person is not a participant by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, unless consent is given by the participants.

'(2) Tamper with the wires, connections, boxes, fuses, circuits, lines or other equipment or facilities of a telephone or telegraph company over which messages are transmitted with the intent to obtain unlawfully the contents of a telephonic or telegraphic communication to which such person is not a participant.'

Section 94 provides for the issuance of court orders authorizing 'the interception of telephonic and telegraphic communications.' Section 97 provides, in effect, that evidence obtained in violation of the Act shall not be admissible in evidence, and Section 99 declares it a misdemeanor to violate any of the provisions of the Act.

While, as heretofore indicated, the Act is commonly referred to as the Maryland Wire Tapping Act, and the Legislature provided for its inclusion in the Maryland Code under a newly created subtitle which it designated 'Wire Tapping,' and the Act refers to 'interceptions' of telephonic messages, it clearly proscribes more than the mere interception of telephonic communications by conventional wire tapping methods; by its express terms, it prohibits the 'obtaining' of such a communication 'by means of any device, contrivance, machine, or apparatus * * * unless consent is given by the participants.' ¹ That an extension telephone could be deemed to constitute a device for 'intercepting' or 'obtaining' a telephonic communication without the consent of all the participants is entirely clear. See Commonwealth v. Murray, 423 Pa. 37, 223 A.2d 102. But the relevant inquiry is whether the Legislature intended such a result; and although it is generally true that the Legislature should be understood to intend what is plainly expressed in the language of the statute, Slagle v. State, 243 Md. 435, 221 A.2d 641, it is also true, as stated in Maguire v. State, 192 Md. 615, at page 623, 65 A.2d 299, at page 302, that 'Adherence to the meaning of words does not require or permit isolation of words from their context * * * (since) the meaning of the plainest words in a statute may be controlled by the context.' Thus, in order to ascertain the legislative intention where, as here, the exact reach or breadth of the statute lies in doubt, we must construe it as a whole, considering all parts together, with the legislative intention gathered from the entire statute, rather than from only one part thereof. See Shub v. Simpson, 196 Md. 177, 76 A.2d 332; Powell v. State, 179 Md. 399, 18 A.2d 587. In other words, in such circumstances as are here present, we must consider not only the literal or usual meaning of words, but their meaning and effect considered in the light of the setting, the objectives and purposes of the enactment, with the legislative intent prevailing over literal intent. Truitt v. Board of Public Works, 243 Md. 375, 221 A.2d 370; Height v. State, 225 Md. 251, 170 A.2d 212; McKeon v. State, 211 Md. 437, 127 A.2d 635; Barnes v. State, 186 Md. 287, 47 A.2d 50. In determining the scope of the Act's provisions, therefore, and particularly Section 93(a)(1), we consider briefly the state of the law pertaining to wire tapping and eavesdropping as it existed at the time of the Act's passage in 1956.

In Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, decided in 1928, the Supreme Court held that the search and seizure provisions of the Fourth Amendment did not prohibit the use of evidence of private conversations intercepted by means of wire tapping, so long as there was not physical trespass on premises owned by or under the control of the accused. The court there noted that while there was no constitutional impediment to wire tapping, the Congress could, by statute, protect the secrecy of telephone messages by making them, when intercepted, inadmissible in evidence in federal criminal trials. By Section 605 of the Federal Communications Act, passed in 1934 (47 U.S.C.A. § 605), Congress provided, in pertinent part, that 'no person not being authorized by the sender shall intercept any communication and divulge or publish existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.' ² In Goldman v. United States, 316 U.S. 129 at page 134, 62 S.Ct. 993, at page 995, 86 L.Ed. 1322, decided in 1942, the Supreme Court held that to constitute an 'interception' of a telephonic communication within the meaning of the Federal Communications Act, there must be a 'taking or seizure by the way or before arrival at the destined place,' and that the term 'does not ordinarily connote the obtaining of what is to be sent before, or at the moment, it leaves the possession of the proposed sender, or after, or at the moment, it comes into the possession of the intended receiver.' The court in Goldman concluded that the overhearing of a phone conversation by means of a detectaphone placed against a wall in an adjoining room did not constitute such an interception as was within the coverage of the federal Act. In Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, decided in 1952, the Supreme Court held that the federal prohibition of unauthorized interception of telephone communications did not render evidence obtained in violation thereof inadmissible in a State criminal trial. In its 1956 report to the General Assembly of Maryland, the Legislative Council of Maryland observed that there was no existing state regulation of wire tapping and that evidence so obtained was admissible in trials of criminal cases in Maryland. It urged enactment of a strict law regulating wire tapping (see Manger v. State, 214 Md. 71, 133 A.2d 78) and, as previously indicated, the Maryland Wire Tapping Act was passed in that year and has not since been amended.

Viewed in the light of the background against which it was enacted, it would seem that the legislation was designed to prohibit wire tapping and the use of devices of a character such as that used in Goldman-with the broader phraseology in the Act proscribing the 'obtaining' of telephonic communications by 'any device * * *,' being utilized to overcome the technical limitations placed upon the word 'interception,' when used in connection with wire tapping and telephonic eavesdropping statutes.

In Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134, decided in 1957, the Supreme Court held that listening to a...