von Lusch v. State

• Decision Date: 31 January 1977
• Docket Number: No. 44,44
• Citation: 279 Md. 255,368 A.2d 468
• Parties: Richard von LUSCH v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 255

279 Md. 255

368 A.2d 468

Richard von LUSCH v. STATE of Maryland.

No. 44.

Court of Appeals of Maryland.

Jan. 31, 1977.

Philip W. Moore, Easton (Michael Francis O'Connor, Easton, on the brief), for appellant.

Bernard A. Raum, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ.

ELDRIDGE, Judge.

This case presents questions involving the admissibility of evidence at petitioner's criminal trial of petitioner's prior conviction of a crime at a time when he was not represented by counsel. Also presented is the question of whether petitioner waived his objection to the evidence by failing to specify the ground for the objection.

Petitioner Richard von Lusch resides in Queen Anne's County, Maryland. Located in the general vicinity of petitioner's home is an airport, known as the Bay Bridge Airport. The record indicates that petitioner considers the airport operations a hindrance to the peaceful enjoyment of his home, detrimental to his health, and a violation of the zoning regulations of Qeen Anne's County. In 1974, petitioner allegedly made numerous telephone calls both to Mr. Julius Grollman, an operator of a local general store and one of the county commissioners in Queen Anne's County, and to the Bay Bridge Airport. Subsequently, charges were brought against petitioner as a result of separate complaints filed by Mr. Grollman and by Mr. Eugene Grannon, president of the company operating the airport.

Petitioner was tried before a jury in the Circuit Court for Caroline County, after removal from Queen Anne's County, on four counts of unlawfully using telephone facilities with the intent to 'annoy, abuse, torment, harass, or embarrass one or more persons' in violation of Maryland Code (1957, 1976 Repl.Vol.), Art. 27, § 555A. At trial, Mr. Grollman testified that on May 5, 1974, he and members of his family received 40 telephone calls from petitioner. Mr. Grollman further testified that on May 11, 1974, he received 14 telephone calls from petitioner between 8:50 a. m. and 6:15 a. m. According to his testimony, the nature of the calls was similar and involved complaints about airplanes flying over petitioer's house and 'why I (Grollman) didn't protect his rights or enforce the law of airplanes flying over.' Mr. Grollman testified that petitioner habitually hung up the phone without allowing him to respond to the statements. Airport personnel testified that Bay Bridge Airport received 14 and 12 telephone calls from petitioner on May 5, 1974, and May 11, 1974, respectively. According to their testimony, the substance of the telephone calls was similar to the ones received by Mr. Grollman. Furthermore, they testified that petitioner was abusive and used vulgar language.

While petitioner did not seriously dispute the number of telephone calls allegedly made on the two days, he vehemently denied that the calls were made with the requisite intent to annoy or harass as required by Art. 27, § 555A. According to petitioner, he merely attempted to 'have . . . (his) rights observed.' He further testified that he neither used abusive language nor hung up the phone abruptly upon making the complaints, but rather that Mr. Grollman and the airport personnel used abusive and threatening language and consistently hung up on him, which necessitated the frequency of calls. Mrs. von Lusch supported her husband's testimony with respect to the nature of the telephone calls.

Petitioner was convicted on all four counts of violating Art. 27, § 555A, for which he was sentenced to a term of 3 months' confinement in the county jail on each count. The jail sentences were suspended and petitioner was placed on probation for 3 years. He also received a fine of $500.00 on each of the four counts.

Upon appeal to the Court of Special Appeals, several grounds for reversal were urged by petitioner. One of those grounds was that evidence concerning petitioner's conviction for auto larceny on April 25, 1931, was improperly admitted for impeachment purposes, as the conviction had been obtained at a trial in which the petitioner was not represented by counsel. In affirming the conviction by a 2-1 vote, Judge Lowe dissenting, the Court of Special Appeals failed to reach the merits of this contention. The majority held that petitioner's right to challenge the evidence, on the ground that he had not been represented by counsel at the time of the prior conviction, had been waived by his attorney's failure to specify this ground for his objection. The Court of Special Appeals, however, vacated the sentences because of the absence of counsel for the petitioner at the sentencing stage of the proceedings and remanded the case for resentencing. Von Lusch v. State, 31 Md.App. 271, 356 A.2d 277 (1976). Thereafter, this Court granted von Lusch's petition for a writ of certiorari.

Petitioner contends that it was improper for the prosecution during cross-examination to ask him about his conviction for auto larceny on April 25, 1931, because, at the time the prior conviction had been secured, he had not been represented by counsel. ¹ We agree. As Judge Singley recently pointed out for this Court in Taylor v. State, 278 Md. 150, 152, 360 A.2d 430, 432 (1972), the Supreme Court's decisions in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), 'stand for the proposition that constitutionally infirm convictions, infirm because they antedated Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and were cases in which the defendant was convicted without being represented by counsel, could not be used to support the guilt of a defendant, to enhance the punishment of a defendant, or to impeach the credibility of a defendant.' Loper v. Beto, supra, directly governs the instant case. There, the Supreme Court stated (405 U.S. at 483, 92 S.Ct. at 1019):

'Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant's credibility deprives him of due process of law. We can put the matter no better than in the words of the Court of Appeals for the First Circuit:

"We conclude that the Burgett rule against use of uncounseled convictions 'to prove guilt' was intended to prohibit their use 'to impeach credibility,' for the obvious purpose and likely effect of impeaching the defendant's credibility is to imply, if not prove, guilt. Even if such prohibition was not originally contemplated, we fail to discern any distinction which would allow such invalid convictions to be used to impeach credibility. The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt' Gilday v. Scafati, 1 Cir., 428 F.2d 1027, 1029.'

It is clear, therefore, that evidence of petitioner's 1931 conviction was improperly used to impeach his credibility.

The State does not seriously suggest that the introduction of the 1931 conviction was proper in light of Loper v. Beto, supra; United States v. Tucker, supra; and Burgett v. Texas, supra. Instead the State contends that the error was harmless beyond a reasonable doubt. However, in Burgett, the Supreme Court addressed the issue of whether the admission of such evidence constituted prejudicial error, stating (389 U.S. at 115, 88 S.Ct. at 262):

'The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error 'harmless beyond a reasonable doubt' within the meaning of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.'

And in Loper v. Beto, supra, 405 U.S. at 483 n. 12, 92 S.Ct. at 1019, involving the use of prior invalid convictions for impeachment purposes, the Court simply noted:

'In the circumstances of this case there is little room for a finding of harmless error, if, as appears on the record now before us, Loper was unrepresented by counsel and did not waive counsel at the time of the earlier convictions.'

See also Dorsey v. State, 276 Md. 638, 648 n. 6, 350 A.2d 665 (1976), where we pointed to Brugett and Loper as examples of cases involving types of error which perhaps could never be treated as harmless.

However, assuming arguendo that there are situations in which the admission against a criminal defendant of prior convictions that are constitutionally invalid under Gideon v. Wainwright is harmless error, we believe that under the circumstances of this case the error cannot be deemed harmless. Here, the petitioner's testimony was the principal thrust of his defense. His credibility therefore was of the utmost importance. Although the evidence with respect to the number of telephone calls made by petitioner was not seriously disputed, the testimony regarding the nature of the calls, which was relevant to disclose petitioner's intent in making the calls, was contradictory. Mr. Grollman and the airport personnel testified that petitioner was arrogant, abusive and abrupt on the phone, consistently hanging up without allowing any opportunity for a response. On the other hand, petitioner testified that it was not he who acted in this manner but rather Mr. Grollman and the airport personnel. He further testified that the frequency of his calls was necessitated by the complaining witnesses' behavior in hanging up the phone upon recognizing his voice, thereby frustrating his attempts to convey his complaints. Under the circumstances presented, the case largely turned upon the credibility of the various witnesses. Therefore,...