von Lusch v. State

• Decision Date: 15 April 1976
• Docket Number: No. 213,213
• Citation: 31 Md.App. 271,356 A.2d 277
• Parties: Richard von LUSCH v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 271

31 Md.App. 271

356 A.2d 277

Richard von LUSCH v. STATE of Maryland.

No. 213.

Court of Special Appeals of Maryland.

April 15, 1976.

Richard von Lusch, for appellant.

Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., J. Owen Wise, State's Atty. for Caroline County, and John T. Clark, Asst. State's Atty. for Caroline County, on the brief, for appellee.

Argued before MENCHINE, LOWE and MELVIN, JJ.

MELVIN, Judge.

On September 23, 1974, the appellant, Richard von Lusch, was found guilty by a jury in the Circuit Court for Caroline County (Judge B. Hackett Turner, Jr. presiding) of four violations of § 555A of Article 27 of the Annotated Code of Maryland (1976 Repl. vol.). That section, in pertinent part, makes it 'unlawful for any person to make use of telephone facilities or equipment * * * for repeated calls, if with intent to annoy, abuse, torment, harass, or embarrass one or more persons' and provides that a violator is guilty of a misdemeanor and subject to a fine of not more than $500 or imprisonment for not more than 3 years, or both in the discretion of the court.

The charges against appellant originated in the Maryland District Court in Queen Anne's County as a result of separate complaints filed by Julius Grollman and Eugene E. Grannan. Upon appellant's requests for jury trial the cases were transferred to the Circuit Court for Queen Anne's County. The cases were then, at appellant's request, removed to the Circuit Court for Caroline County where they were consolidated for trial. The charging document in each case contained two counts. The first count in each charging document charged that appellant violated the above-quoted portion of § 555A on Sunday, May 5, 1974 and the second count in each charging document alleged a similar violation on Saturday, May 11, 1974.

After a motion for a new trial was denied on December 5, 1974, appellant was sentenced on January 29, 1975 to the Centreville jail for 3 months on each count

'1. Can a resident who is aggrieved and appellant placed on probation for 3 years. He also received a fine of $500 on each count in each case.

In his brief, filed in proper person ¹, appellant presents 8 questions on this appeal:

2. Has an elected official and others in public office the right to enter into a conspiracy to circumvent the law by creating new laws to cover up violations of the law which deny Constitution and Civil Rights?

3. What is the justification of wiretaps without a court order and the admission of that evidence in violation of 10-401, 10-402, 10-403, and 10-406 of the Annotated Code of Maryland and the Federal Constitutional laws which forbid these actions?

4. Are the courts to be allowed to suppress evidence that can prove a citizen innocent?

5. Are the right to confront a witness and cross examine to be denied in any court in this country?

6. Under what rules have the courts the right to deny the right to counsel in violation of the 6th and 14th Amendments?

7. Has not the accused the right to be present at a hearing for a new trial if he so desires?

8. Have the public officials the right to aid in the maintenance of a hazard to the lives and health of the residents of a community when that enterprise has clearly established itself as a danger to the community and a nuisance?'

We shall consider questions 1, 2 and 8 under the heading sufficiency of the evidence, for, as we understand appellant's arguments on these questions, he contends that, as a matter of law, the evidence shows his lack of intent, in making the telephone calls, to 'annoy, abuse, torment, harass, or embarrass', and therefore his motion for 'directed verdict ²' at the close of all the evidence should have been granted.

Preliminarily, we note that the record before us in this case reveals that it is yet another chapter in the running battle appellant has waged for a number of years against the existence of the Bay Bridge Airport ³. The airport is located just south of Maryland Route 50/301 in Queen Anne's County near the eastern end of the Chesapeake Bay Bridge. Appellant lives just north of Route 50/301 in a large house in which he operates an antique business. He testified that his property is 1,000 ft. from the airport runway. To say that he is not happy with the location of the airport is certainly an understatement. This unhappiness is perhaps equalled in degree only by his unhappiness with the government officials of Queen Anne's County for permitting it to exist and with the operators of the airport for the manner in which it is operated.

I Sufficiency of the Evidence

Appellant does not dispute the testimony of prosecution witnesses that on May 5, 1974, and May 11, 1974, he did in fact make repeated calls to both Mr. Grollman and the Bay Bridge Airport. Mr. Grannon is the president of the company that operates the airport. Mr. Grollman, who operated a general merchandise store from his home and who at that time was one of three County Commissioners of Queen Anne's County, testified that on Sunday, May 5, 1974, he received 40 telephone calls from the appellant, and that on May 11, 1974, he received 14 calls from him between 8:50 A.M. and 9:15 A.M. Testimony of personnel at the airport was that on May 5, 1974, appellant made as many as 14 calls to the airport, most of which were within short periods of time in the morning, and that on May 11, 1974, appellant made as many as 12 calls, again mostly within short periods of time in the morning. There was ample evidence from which the jury could have found that the calls were 'repeated' within the meaning of the statute. As we have indicated, appellant does not dispute the sufficiency of the evidence in that regard.

Appellant does, however, vigorously challenge the sufficiency of the evidence concerning whether or not the calls were made 'with intent to annoy, abuse, torment, harass or embarrass'. As we understand his contention here, it is essentially that he had a right to make the repeated calls because the airport, in his opinion, was operating illegally and he was only attempting to right what he perceived to be a wrong-not to annoy, harass, etc. anyone. He testified that his calls to Mr. Grollman on May 5, 1974, were to 'ask that he (Grollman) enforce the zoning regulations as I have many times, which would take the planes away from my property', but that 'ever (sic) time I attempt to call Mr. Grollman he recognizes my voice and he hangs up', and that he was unable to 'get a sentence or message to him'. He said 'I actually did dial Mr. Grollman's number, according to my records, forty-one (41) times' on May 5, 1974. 'My. Grollman never answers the phone as a rule, or he will hang up on me if he does and if I ask a question, he just does not answer! He has never given me a direct answer yet!' Each time he called him, an airplane was close to his building. 'Grollman listened when I asked him some questions about when he was going to enforce the zoning ordinances, but he did not answer'.

Mr. Grollman's version of the circumstances was quite different. He testified that his telephone number for his home is the same as that for his store; that on Sunday, May 5, 1974, the store was not open for business; that on that date, as well as May 11, 1974, when his store was open for business, appellant 'would complain about the airplanes flying over his business, which they were trespassing on him; and . . . why I didn't protect his rights or enforce the law of airplanes flying over his place of business', and that appellant's complaints were made in a loud and arrogant tone.

'Q. Now was he asking questions or were these just statements?

A. Well if he did ask a question a . . . I didn't get time to answer it because he always hung up on me. If there were any questions to answer.

Q. Do you mean he would just say what ever he was going to say and hang up?

A. Yes sir.

Q. And you never had any time to reply to anything, is that right sir?

A. Very few occasions on the phone calls.'

Mr. Grollman testified that at other times on the dates in question, 'because I had customers to wait on, and I would answer the phone, recognize the voice and just hang up and go on and wait on the customers'.

'Q. And this voice you recognized as Richard von Lusch?

A. Yes sir. And on numerous occasions he identified himself anyway, or was saying the airplanes were flying over his place of business.'

When asked what effect 'these repeated calls' had on him and his business, Mr. Grollman said:

'Well it has hindered my business, if I would have four or five customers in there, being myself, and if I couldn't take care of them, of the customers by answering the phone, running back and forth to the phone, a . . . someone occasionally would walk out and a . . . I wouldn't have a chance to wait on them.'

Mr. Grollman further testified that although the Board of County Commissioners had a duty to enforce the county zoning laws, he told appellant he 'had no jurisdiction over airplanes flying in the sky'; and that appellant never made an appointment with him in his 'official capacity as a County Commissioner and came before the Commission'.

It is of course true that any person holding elective office should expect telephone complaints, even repeated complaints, from his constituents concerning a variety of matters. Moreover, the fact that the public official might consider such calls annoying, abusive, tormenting, harassing, or embarrassing, or even that the calls may in fact have one or more of those characteristics, does not alone subject the caller to punishment under the statute invoked here. On the other hand, if such calls are made with the requisite intent 'to annoy, abuse, etc.', the fact that the recipient of the calls is a public official does not immunize the caller from the statute's sanctions. It is but a factor to be considered by the trier of fact in considering whether the element of intent has been established.

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