Galloway v. State, No. 21

• Court: Court of Appeals of Maryland
• Writing for the Court: HARRELL.
• Citation: 365 Md. 599,781 A.2d 851
• Parties: George GALLOWAY, Jr. v. STATE of Maryland.
• Docket Number: No. 21
• Decision Date: 19 September 2001

781 A.2d 851
365 Md. 599

George GALLOWAY, Jr.
v.
STATE of Maryland

No. 21, Sept. Term, 2000.

Court of Appeals of Maryland.

September 19, 2001.

781 A.2d 854

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

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief) Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY,¹ RAKER, WILNER, CATHELL and HARRELL, JJ.

781 A.2d 852

781 A.2d 853

HARRELL, Judge

George M. Galloway, Jr., Petitioner, while serving a sentence for prior convictions, was charged with harassment and stalking, pursuant to Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 121A,² for letters he wrote from prison to the victim of the crimes for which he was imprisoned. On 26 October 1998, a pre-trial hearing was held in the Circuit Court for Anne Arundel County on Galloway's written motion to

781 A.2d 855

dismiss challenging the constitutionality of the statute on its face and as applied to his conduct. After hearing argument from the parties and upon their urging, the court reserved its ruling on the motion. Petitioner then waived his right to a jury trial and agreed to proceed with a bench trial on an agreed statement of the facts and a not guilty plea. Galloway moved for judgments of acquittal at the end of the recitation of the agreed facts. The court took the case under advisement.

The Circuit Court, in a written opinion and order dated 28 October 1998, denied Petitioner's motion to dismiss and motion for judgment of acquittal with regard to the charge of harassment. The court denied the motion to dismiss, but granted the motion for judgment of acquittal, as to the charge of stalking.³ On 4 November 1998, after entertaining further argument from counsel, the court found Galloway guilty of the crime of harassment. Sentencing proceeded immediately, and Galloway was sentenced to 90 days incarceration for the conviction. On direct appeal, the Court of Special Appeals affirmed Galloway's conviction of harassment. Galloway v. State, 130 Md.App. 89, 744 A.2d 1070 (2000). We granted Petitioner's petition for writ of certiorari. Galloway v. State, 358 Md. 608, 751 A.2d 470 (2000). We agreed to consider the following question:

Did the trial court err in denying Petitioner's motion to dismiss and in convicting him of harassment under Md.Code (1957, 1996 Repl.Vol.), Art. 27 § 121A, now codified with minimal changes as § 123, specifically in the face of a challenge that the statute is unconstitutionally vague and overbroad on its face and as applied to Petitioner and in the face of a challenge that the facts did not support such a conviction?

I.

In 1995, Galloway was convicted of stalking and kidnapping Kimberly Javin (Javin), his "common law wife." For these crimes, he was sentenced to twelve years incarceration at the Maryland Correctional Training Center (MCTC). It was while serving this sentence that it was alleged that he committed the crime of harassment which is the subject of the present case. According to the agreed statement of facts, between 11 April 1997 and 11 March 1998 he sent 122 letters to Javin at her residence. In addition, he sent an additional 11 letters to her in care of Javin's parents to their home address. Both before and after 17 April 1997, Javin, her parents, Galloway's former attorney in the kidnapping/stalking case, and the assistant warden and a correctional psychologist at MCTC, requested of Galloway that he not send letters to Javin. The prosecution, at the 4 November 1998 hearing, stated that at least five people, including Javin, told Galloway directly to stop writing these letters.

By stipulation, the parties agreed that Javin, if called to testify, would state that "the letters seriously alarmed her and caused her to fear for her life on or after... [Galloway's] release date, which she believ[ed] to be April of 1999." It was agreed further that Javin would testify that her fears stemmed from the fact that Galloway was serving a prison term after having been convicted of stalking and kidnaping her on 20 March 1995. As a condition of his sentence and future probation flowing from those crimes, Galloway was

781 A.2d 856

to have no contact with Javin. The parties also agreed that Javin felt that Galloway's continuing reference in his letters to Javin "to him being Moses and the enforcer of the law and God's and Jesus's ambassador mean[t] that he [would] kill her so that they [could] be with God," notwithstanding that one of the letters containing this language began with the words "[n]othing in this letter is meant to be a threat."⁴

Galloway was charged with harassment and stalking. Maryland Code, (1957, 1996 Repl.Vol., 2000 Cum.Supp.), Article 27, § 123, the harassment statute, provides:

(a) Course of conduct defined.—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.

(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:⁵

(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. (Emphasis added).

The trial judge acquitted him of the stalking charge, but found him guilty of the harassment charge. Galloway argued that § 123 is unconstitutionally vague and overbroad under the U.S. Constitution⁶ and, in

781 A.2d 857

the alternative, that the evidence is insufficient to support a conviction of harassment under § 123. According to the trial judge, § 123 is neither unconstitutionally vague or overbroad. The judge, in his written opinion, stated that § 123 is "constitutional as ... [it] does not suffer from vagueness" and "that the meaning of the statutes have been fairly ascertained by judicial determinations." (Citing Streater v. State, 119 Md.App. 267, 704 A.2d 541 (1998), rev'd on other grounds, 352 Md. 800, 724 A.2d 111 (1999); Pall v. State, 117 Md.App. 242, 699 A.2d 565 (1997)). The trial court also concluded that there was sufficient evidence to support Galloway's conviction of harassment based on the following:

In sending the victim over 130 letters over the course of eleven months, the Court can find that [Galloway] maliciously engaged in a course of conduct that seriously alarmed and annoyed the victim. In repeating the same messages and expressing [Galloway's] desire to reunite with the victim, the Court can find that Defendant intended to harass the victim. As [Galloway] admits in his letter that he knew that victim did not want him to contact her, the Court can find that [Galloway] received a reasonable request to desist. As these were personal letter [sic], the Court can find that they served no legal purpose. Therefore, the Motion for Judgment of Acquittal is denied.

The Court of Special Appeals affirmed the Circuit Court's judgment, agreeing that the language of § 123 was neither vague nor overly broad and that there was sufficient evidence to support a conviction of harassment.

In this opinion, we shall address the following: (1) is § 123 unconstitutionally vague; (2) is § 123 unconstitutionally overly broad; and, (3) if § 123 can withstand constitutional scrutiny, was the evidence adduced against Petitioner sufficient to support a finding of harassment. We determine, after examining the legislative history of § 123 and surveying the treatment accorded similar statutes by other courts, that a reasonable person standard should be read into the language of subsection (c)(1) of § 123, and with that judicial gloss, § 123 survives constitutional scrutiny.⁷ We further conclude that the evidence is sufficient to support Petitioner's conviction of harassment.

II. Constitutionality of § 123

In determining the constitutionality of statutes, "[t]he basic rule is that there is a presumption" that the statute is valid. State v. Wyand, 304 Md. 721, 727, 501 A.2d 43, 46 (1985) (internal quotation marks omitted) (quoting Supermarkets Gen. Corp. v. State, 286 Md. 611, 409 A.2d

781 A.2d 858

250 (1979)), cert. denied, 475 U.S. 1095, 106 S.Ct. 1492, 89 L.Ed.2d 893 (1986). We are reluctant to find a statute unconstitutional if, "by any construction, it can be sustained." Beauchamp v. Somerset County, 256 Md. 541, 547, 261 A.2d 461, 463 (1970). If, however, a statute violates a "mandatory provision" of the Constitution, "we are required to declare such an act unconstitutional and void." Id.; see Cohen v. Governor of Maryland, 255 Md. 5, 22, 255 A.2d 320, 328 (1969). Therefore, if it is established that a statute is vague—offends due process⁸ —and/or overbroad—sweeps within the ambit of constitutionally "protected expressive or associational rights"⁹ —then the statute is unconstitutional. The party attacking the statute has the burden of establishing its unconstitutionality.¹⁰ Beauchamp, 256 Md. at 547, 261

781 A.2d 859

A.2d at 463 (citing National Can Corp. v. State Tax Comm'n, 220 Md. 418, 153 A.2d 287 (1959), appeal dismissed, 361 U.S. 534, 80 S.Ct. 586, 4 L.Ed.2d 538 (1960)). Petitioner fails to shoulder this burden in the present case.

A. Legislative History of § 123

According to the 1986 Maryland Laws, chapter 721, the purpose of § 123 is

prohibiting a person from following another person in a certain manner or from engaging in certain other conduct under certain circumstances; defining a certain term; providing penalties for a violation of this

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