Galloway v. State, No. 1751

• Court: Court of Special Appeals of Maryland
• Writing for the Court: ADKINS.
• Citation: 744 A.2d 1070,130 Md. App. 89
• Docket Number: No. 1751
• Decision Date: 01 February 2000
• Parties: George GALLOWAY, Jr. v. STATE of Maryland.

744 A.2d 1070
130 Md. App. 89

George GALLOWAY, Jr.
v.
STATE of Maryland

No. 1751, Sept. Term, 1998.

Court of Special Appeals of Maryland.

February 1, 2000.

744 A.2d 1071

Claudia A. Cortese, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Frank Weathersbee, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

Submitted before MURPHY, C.J., and BYRNES and ADKINS, JJ.

ADKINS, Judge.

Appellant, George Galloway, Jr., while serving a previous sentence, was charged with stalking and harassment. On October 26, 1998, a hearing was held in the Circuit Court for Anne Arundel County on appellant's motion to dismiss, which was denied. On the same day, appellant waived his right to a jury trial and proceeded to trial upon an agreed statement of facts. In a written opinion, the trial court found appellant guilty of harassment and acquitted him of stalking. On November 4, 1998, appellant was sentenced to ninety days incarceration. This appeal followed.

Appellant asks us to decide whether the trial court erred in: 1) denying his motion to dismiss on the ground that the harassment statute is unconstitutional; and 2) convicting him of harassment without sufficient evidence.

FACTS

In 1995, appellant was convicted of kidnapping and stalking Kimberly Jabin, and sentenced to twelve years in prison at the Maryland Correctional Training Center (MCTC). While serving his sentence, during the period April 11, 1997, to March 11, 1998, appellant sent Jabin 122 letters to her home address. In addition, he sent eleven letters in care of her parents at their home address.

According to the agreed statement of facts presented at appellant's trial, both before and after April 17, 1997, Jabin, her parents, appellant's former attorney, and both the assistant warden and a correctional psychologist at MCTC requested that appellant not send Jabin letters. By stipulation, the parties agreed that Jabin would testify that the letters "seriously alarmed her and caused her to fear [for her safety and] for her life on or after [appellant's] release date" of April 1999. It was also stipulated that Jabin would testify that the letters' "continued reference to him being Moses and the enforcer of the law and God's and Jesus'[s] ambassador mean[t] that he will kill her so that they can be with God." She felt this way even though one of the letters began, "Nothing in this letter is meant to be a threat."

Additional facts will be included as they are necessary to our discussion.

DISCUSSION

I. CONSTITUTIONALITY OF STATUTE

Maryland Code (1957, 1992 Repl.Vol., 1995 Supp.), Art. 27, § 121A (the "harassment statute"),¹ provides:

(a) Course of conduct.—In this section "course of conduct" means a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose.

(b) Applicability.—This section does not apply to any peaceable activity intended to express political views or provide information to others.

744 A.2d 1072

(c) Prohibited conduct.—A person may not follow another person in or about a public place or maliciously engage in a course of conduct that alarms or seriously annoys another person:

(1) With intent to harass, alarm, or annoy the other person;

(2) After reasonable warning or request to desist by or on behalf of the other person; and

(3) Without a legal purpose.

(d) Penalty.—A person who violates this section is guilty of a misdemeanor and, upon conviction, is subject to a fine not exceeding $500 or imprisonment for not more than 90 days or both.

Appellant contends that this statute is unconstitutional because: 1) it is overly vague, both on its face and as it applies to him; and 2) it is overbroad in that it intrudes into an area of constitutionally protected speech and prohibits what may not be punished under the First and Fourteenth Amendments to the United States Constitution.

A. The Statute is not Void for Vagueness

Appellant first maintains that the statute is vague on its face in that it does not clearly inform the average citizen what actions are illegal and that people of reasonable intelligence could not know what it intends to prohibit and what it allows. He contends that it is impossible for a citizen to determine what communication will cause "alarm" or "serious annoyance," because these are measurements subject to change with the sensibilities of each individual.

Maryland appellate courts have addressed the constitutional standards requiring that criminal statutes not be impermissibly vague. A penal statute is impermissibly vague only when it fails to "`explicit[ly] inform those who are subject to it what conduct on their part will render them liable to its penalties.'" Williams v. State, 329 Md. 1, 8, 616 A.2d 1275 (1992) (quoting Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)). This fair notice principle is grounded on the precept that one should be free to choose between lawful and unlawful conduct. See Bowers v. State, 283 Md. 115, 120-21, 389 A.2d 341 (1978). A statute may also "be void for vagueness if it lacks fixed enforcement standards or guidelines and thus `impermissibly delegates basic policy matters to policemen, judges, and juries for resolution.' " Eanes v. State, 318 Md. 436, 459, 569 A.2d 604, cert. denied, 496 U.S. 938, 110 S.Ct. 3218, 110 L.Ed.2d 665 (1990) (quoting Grayned v. Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972)).

In Eanes, the defendant challenged the constitutionality, on vagueness and other grounds, of a statute making it unlawful for anyone to "willfully disturb any neighborhood in [any Maryland] city, town or county by loud and unseemly noises...." Id. at 440, 569 A.2d 604. In upholding the statute against the challenge for vagueness, the Court of Appeals explained:

A law is not vague simply because it requires conformity to an imprecise normative standard.

`The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.'

The touchstone is whether persons of `"common intelligence"' need reasonably `"guess at its meaning."'

Id. at 459, 569 A.2d 604 (citations omitted).

The Eanes Court emphasized that "we here apply normal meanings to words of common understanding" and that "the objective `reasonable' test is used in many areas of the law as an appropriate determinant

744 A.2d 1073

of liability and thus a guide to conduct." Id. at 461-62, 569 A.2d 604

We upheld the constitutionality of the "telephone harassment statute" against a challenge on vagueness grounds. Maryland Code (1957, 1996 Repl.Vol.), Art. 27 § 555A makes it illegal to "make use of telephone facilities or equipment ... if with intent to annoy, abuse, torment, harass, or embarrass...