Hughes v. State

• Citation: 14 Md.App. 497,287 A.2d 299
• Decision Date: 16 February 1972
• Docket Number: No. 445,445
• Parties: Bruce Wilden HUGHES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 497

14 Md.App. 497

287 A.2d 299

Bruce Wilden HUGHES v. STATE of Maryland.

No. 445.

Court of Special Appeals of Maryland.

Feb. 16, 1972.

Certiorari Denied April 11, 1972.

Beverly S. Pearson, Rockville, for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County and Stephen R. Creyke, Asst. State's Atty. for Montgomery County on the brief, for appellee.

Argued before ORTH, MOYLAN and POWERS, JJ.

ORTH, Judge.

Bruce Wilden Hughes does not claim that the evidence adduced at his trial before a jury in the Circuit Court for Montgomery County was not sufficient to sustain his convictions of committing a certain unnatural and perverted sexual practice on each of 17 January and 24 January 1971 with Frank Edward Dunklee, Jr., a male child under the age of eighteen years. ¹ But he asserts that the convictions must be set aside because the statute proscribing his conduct is unconstitutional and he claims that in any event the trial court committed prejudicial error in the admission of certain evidence.

I

Code, Art. 27, § 554 provides:

'Every person who shall be convicted of taking into his or her mouth the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth of any other person or animal, or who shall be convicted of committing any other unnatural or perverted sexual practice with any other person or animal, shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned in jail or in the house of correction or in the penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned within the limits above prescribed in the discretion of the court.' ²

The constitutionality of the statute has been upheld heretofore. In Blake v. State, 210 Md. 459, 124 A.2d 273 the Court of Appeals saw no merit in the contention that the statute was unconstitutional because it was vague and uncertain and failed to fix an ascertainable standard of guilt. ³ It observed, at 462, 124 A.2d at 274, that 'similar statutes in other states have been universally sustained', citing cases. Hughes bases his attack on more sophisticated grounds. He urges that the statute is unconstitutional (1) 'for overbreadth in that it punishes every person convicted of acts of sexual perversion without regard to right of privacy of a) consenting married adults and b) consenting unmarried adults concerning their sexual acts,' and (2) 'because the means of enforcement, which allow a penal term for up to ten years, are inappropriate to effectuate the purpose of the legislation.'

(1)

The constitutional issue was raised below by a motion to dismiss which was denied upon hearing. Our first inquiry is whether Hughes had standing to raise the contention. The general rule is that a litigant may only assert his own constitutional rights or immunities. McGowan v. State of Maryland, 366 U.S. 420, 429, 81 S.Ct. 1101, 6 L.Ed.2d 393, citing United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. We said in Lashley v. State, 10 Md.App. 136, 143, 268 A.2d 502, 507: 'Ordinarily, a person has no standing in court to vindicate the constitutional rights of others.' We pointed out that in State v. Cherry, 224 Md. 144, 155, 167 A.2d 328, the Court of Appeals noted that while, as a general rule in criminal prosecutions, the accused has the right to assert the invalidity of the law under which he is being prosecuted, he must show that his rights are adversely affected by the statute and more particularly that his rithts are thus affected by the particular feature of the statute alleged to be in conflict with the constitution, it not being sufficient that the statute may impair the rights of others. We observed that Brown v. State, 177 Md. 321, 9 A.2d 209, Crouse v. State, 130 Md. 364, 100 A. 361, and Parker v. State, 99 Md. 189, 57 A. 677 were to like effect. See Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404; Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. The basic of Hughes' argument is that because the statute is unconstitutional as it applies to consenting adults, married or unmarried, it is unconstitutional on its face and may not be applied to him. But he was not charged as a consenting adult with indulging in the proscribed conduct with another consenting adult. Rather the charge was that he committed an unnatural and perverted sexual practice with a minor. He recognizes that 'the legislature may pass laws in the field of regulation of sexual perversion and regulation of obscenity' and he concedes that 'the act for which (he) was convicted might under a properly drawn statute be made subject to criminal sanctions.' We do not agree that in the circumstances he has standing to challenge the constitutionality of the statute upon its face; he has not shown that his rights were adversely affected by the feature of the statute which he alleges to be in conflict with the constitution. That it may impair the rights of others does not bestow upon him standing to challenge it. The possibility of a law's unconstitutional invocation against some defendants in no way affects its constitutionality when it is invoked against a clearly punishable person.

Hughes protests that the general rule is here not apposite. He points out that the statute is not severable, with a constitutional part applicable to one person and an unconstitutional part applicable to another person as was the case, he alleges, in Lashley in which Code, Art. 27, § 3 was involved. He says that the statute here applies to 'every person' who commits the proscribed acts and since it is unconstitutional as to some persons who commit such acts it must be held to be unconstitutional as to 'every person' who commits them. We do not see it that way. We are aware that the Court of Appeals in State v. Cherry, supra, at 155, 167 A.2d at 333, quoted with approval 16 C.J.S. Constitutional Law § 84: 'An accused affected by one portion (of a statute) may not plead the invalidity of another portion of the same statute not applicable to his case, where the invalidity of the portion questioned will not render void the entire act or at least some provision that does not affect him adversely; * * *.' But it was early established that it is the duty of an appellate court to so construe the language of a statute as to make it valid and effective. Parker v. State 99 Md. 189, 57 A. 677 concerned an Act prohibiting the selling and giving away of intoxicating liquors. It was claimed that the Act was void because it did not contain explicit provisos excepting the giving of liquor by private citizens to the members of their household or their guests within their own homes. The Court said, at 200, 57 A. at 678, '(A)ssuming that its terms are so general that it might be construed as suggested, yet if such a construction would, as contended, make the Act invalid, it would be our duty, if possible, to so construe the language as to make the act valid and effective. This rule of constructions is so well settled that it requires no elaboration.' So, even if it were 'the Supreme Law of the State' through decisions of the Supreme Court of the United States ⁴ that it was unconstitutional to prohibit consenting adults from committing the acts designated by § 554, the statute could be construed so as to exempt consenting adults, 'for it is not to be presumed that the Legislature intended to do an unconstitutional and void thing; and any construction that would lead to such a conclusion ought to be avoided if possible.' Temmick v. Owings, 70 Md. 246, 251, 16 A. 719, 721. We did this in State v. Siegel, Md.App., 285 A.2d 671, filed 29 November 1971. See Kirstel v. State, Md.App., 284 A.2d 12, filed 1 December 1971; Anderson v. State, 12 Md.App. 186, 278 A.2d 439.

Nothing we have said in determining that Hughes had no standing to contest the constitutionality of the statute is to be construed as implying that we believe that the statute is unconstitutional as to adults, married or unmarried, consenting to the acts proscribed. We shall decide that question when it is properly presented to us. We observe, however, that although it is conceivable that a husband and wife could be convicted under § 554 even though the evidence established that the act was committed with the consent of both parties ⁵, we think it unlikely. We are not aware of a case in this jurisdiction where a husband or wife was convicted of the offense. ⁶ If the acts were in private there would be no witnesses, and if consensual the parties would be equally guilty. Their testimony as witnesses would then require corroboration. Early v. State, 13 Md.App. 182, 282 A.2d 154. And of course, neither the husband nor the wife would be a compellable witness against the other. Code, Art. 35, § 4. Mr. Justice Douglas, speaking for the Court in Griswold v. State of Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510, said:

'We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.'

We share the sentiments of the court in Pruett v. State, 463 S.W.2d 191, 195 (Tex.Cr.App.1970) that to extend the protection of this right of privacy of the marital union to strike down a statute proscribing cunnilingus, fellatio, and the whole field of other unnatural or perverted sexual practice, when successful prosecution of private consensual sexual acts between married...