Hallengren v. State

• Decision Date: 19 January 1972
• Docket Number: No. 146,146
• Citation: 286 A.2d 213,14 Md.App. 43
• Parties: Eric C. HALLENGREN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 43

14 Md.App. 43

286 A.2d 213

Eric C. HALLENGREN v. STATE of Maryland.

No. 146.

Court of Special Appeals of Maryland.

Jan. 19, 1972.

Harold Buchman, Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., which whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Stephen L. Miles, Asst. State's Atty., respectively for Baltimore City on brief, for appellee.

Argued before MURPHY, C. J., ORTH and GILBERT, JJ.

MURPHY, Chief Judge.

Appellant, a public school teacher, was found guilty by a jury in the Criminal Court of Baltimore of (1) violating Maryland Code, Article 27, Section 121 by (a) disturbing a certain neighborhood by loud and unseemly noises, and (6) by using obscene language upon or near a public street within the hearing of persons then and there passing; and (2) violating Article 27, Section 123(c) by acting in a disorderly manner to the disturbance of the public peace upon a designated public street. The court sentenced appellant to pay a of $100.00 and thirty days imprisonment for the Section 121 convictions, and imposed a consecutive sentence of sixty days and a $50.00 find for the Section 123 conviction. The jail sentences were thereafter suspended and appellant was released on probation for one year upon condition of good behavior and payment of fines and court costs. On appeal, appellant claims that the statutes under which he was convicted are unconstitutional; that the court committed error in failing to properly instruct the jury; that there was a merger of offenses; and that because the evidence was legally insufficient to support his convictions, the court erred in overruling his motions for judgments of acquittal.

Evidence adduced at trial showed that wide-ranging disorders punctuated Baltimore's annual Flower Mart on May 13, 1970. ¹ The trouble began around noon, and a force of 150 police officers were ordered to the scene. Police and other witnesses for the State described what occurred. One officer testified that large crowds were 'running wild' through the street and grass plots. Other officers testified that police and old women were being assaulted; that disorderly people were running around shouting; that missiles were flying through the air; that persons were being stabbed; that youths were fighting among themselves; that one girl had been stripped of her clothing; that Flower Mart stands were being kicked in. There was evidence showing that order was generally restored at approximately 1:30 p. m., but that sporadic outbreaks of disorder and violence occurred at various times and in various areas within the Flower Mart's confines during the remainder of the afternoon. At approximately 4:00 p. m., the Flower Mart was closed. Thereafter, a large crowd of persons began throwing lemons, rocks, and bottles at the police. A line of seventy-five officers, some mounted on horses, was formed to move the disorderly crowd from the area. Appellant was in the crowd of persons which the police were endeavoring to disperse. He was arrested at 4:45 p. m Seven police officers testified to observing appellant at the Flower Mart. Several of the testifying officers thought they first saw appellant between 2:00 p. m. and 3:00 p. m.; other officers fixed the time between 3:00 p. m. and 4:00 p. m. One of the arresting officers said that he first saw appellant sometime after 4:00 p. m. The officers were generally in agreement as to appellant's activities. They placed him in the crowd of persons at the Flower Mart and said that with fist clenched over his head he was loudly exhorting the crowd to resist and kill the police. One officer heard appellant shout:

'This is a people's park; Drive the mother fucking pigs out; drive them out now!'

Other officers testified that appellant urged the crowd not to move, but to 'kill the pigs,' to 'get the fucking pigs,' and to 'Fuck those God-Damned pigs.' One officer testified that appellant threw a commercial snowball at another officer, striking him in the face. He fixed the time of this event at approximately 2:00 p. m. Another officer said appellant threw a stone and something resembling a minature whiskey bottle at him. He thought this incident occurred sometime after 3:00 p. m. Another officer testified that he attempted to apprehend appellant, but he was unable to follow him into the crowd. The officers who arrested appellant on the street at 4:45 p. m. testified that he said that he had not meant to throw the bottle.

Witnesses testifying on appellant's behalf, including the principal of his school and a fellow teacher, said that he could not have left his teaching job earlier than 3:20 p. m. or arrived at the Flower Mart before 4:00 p. m. Two other witnesses saw appellant riding in an automobile near the Flower Mart between 4:15 p. m. and 4:25 p. m. Other witnesses testifying on appellant's behalf said in effect that appellant was guilty of no misconduct, but that the police overreacted and used excessive force in their efforts to disperse the crowd.

Testifying in his own behalf, appellant said that he had been active in peace and anti-war demonstrations. He said that he did not arrive at the Flower Mart until 4:15 p. m., at which time he observed that the police were forcibly attempting to move a crowd of persons away from the area; that he was unable to ascertain the reason for the police action, became angry, called the police pigs, and ran from the scene when police chased him. He denied any other name calling, missile throwing, or any other misconduct.

Two other witnesses, testifying in appellant's behalf, said that appellant had a good reputation in the community for truth and veracity and that based thereon, each would believe him under oath.

I

The question of the constitutionality of Sections 121 and 123 was not raised prior to or during trial and, consequently, the issue was not decided by the lower court. In these circumstances, the constitutional question is not properly before us. Vuitch v. State, 10 Md.App. 389, 271 A.2d 371; Luthardt v. State, 6 Md.App. 251, 251 A.2d 40; Iozzi v. State,5 Md.App. 415, 247 A.2d 758; Woodell v. State, 2 Md.App. 433, 234 A.2d 890. To the extent that the constitutional question was considered on appellant's motion for a new trial, we do not deem the denial of the motion to be properly before us. Vuitch v. State, supra; Pinkney v. State, 9 Md.App. 283, 263 A.2d 871; Johnson v. State, 3 Md.App. 105, 238 A.2d 286. We nevertheless note that all presumptions favor the constitutionality of a duly enacted statute and it will not be declared unconstitutional unless it plainly contravenes the federal or state constitutions. Woodell v. State, supra. We also note our previous decisions finding, as a matter of constitutional law, Section 123 neither vague, indefinite, nor overbroad. See Luthardt v. State, supra; Becheller v. State, 3 Md.App. 626, 240 A.2d 623. See also Lynch v. State, 2 Md.App. 546, 236 A.2d 45.

II

Based on the testimony of the character witnesses that appellant had a good reputation for truth and veracity in the community in which he resided, he requested the court to instruct the jury as follows:

'In determining whether the prosecution has proven his case beyond a reasonable doubt you must consider the character testimony offered by the defendant. It is substantive evidence and must be considered together with all other evidence offered in this case. Charater testimony also may in and of itself create the doubt in your minds sufficient to cause your finding the defendant not guilty of each and every count.'

Relying on Braxton v. State, 11 Md.App. 435, 274 A.2d 647, appellant claims that the court's refusal to so instruct the jury constituted reversible error.

In Braxton, the accused was charged with robbery with a deadly weapon. He called a witness in his behalf who testified, without objection, that the accused had a good reputation in the community for 'good character and honesty, trustworthy.' Based on this testimony, Braxton requested the court to instruct the jury that such evidence of his good character 'is regarded as relevant to the question whether the defendant is innocent or guilty of the crime charged, because the jury may, if its judgment so directs, reason that it is improbable that a person of good character in such respects would have conducted himself as alleged.' We held that the court erred in not giving the requested instruction, reasoning that Braxton was entitled to offer evidence of his good character as proof that it was unlikely that he would have committed the armed robbery with which he was charged. We noted that to be relevant character evidence must be confined to an attribute or trait, the existence or non-existence of which would be involved in the non-commission or commission of the particular crime charged. With respect to the weight and effect of such character evidence, we said that while not in itself a defense to a crime, it should, when proved, be taken into consideration in connection with all the other evidence and afforded such weight under all the facts and circumstances of the case as it merits in the judgment of the jury. We noted that evidence of good character is not merely collateral evidence, but may in itself raise such a doubt as to require the acquittal of the defendant. We concluded that Braxton's reputation for 'good character and honesty, trustworthy' was not irrelevant in a prosecutin for robbery. The case was a close one, and we observed that Braxton argued to the jury that since he was endowed with such good character traits, it was unlikely tht he would commit armed robbery. We concluded, in the circumstances of the case, that Braxton was 'entitled to an instruction that the (good character) evidence should be taken into consideration by the jury in connection with all the other evidence in the case and, in arriving at their verdict of guilt or innocence, given such weight under all the facts...