Anderson v. State

¹⁹⁰ Orth, J., delivered the opinion of the Court. THE STATUTE The fifty-nine appellants in this case claim that Md. Code, Art. 27, § 577 A (1) is unconstitutional on its face and as applied. They were found guilty of violating the statute by a jury at a joint trial in the Circuit Court for Prince George’s County. 1 Section 577 A is entitled “Refusing to leave public buildings or grounds upon request” and subsection (1) reads: “ (1) During regular closing hours. — Any person refusing or failing to leave a public building or grounds, or specific portion thereof, of a public agency or public institution during those hours of the day or night when the building, grounds, or specific portion thereof, is regularly closed to the public, upon being requested to do so by a regularly employed guard, watchman or other authorized employee of the public agency or institution owning, operating or maintaining the building or property, if the surrounding circumstances are such as to indicate to a reasonable man that such person has no apparent lawful business to pursue at such place, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $1,000.00, or imprisoned for not more than six months, or both, in the discretion of the court.” ¹⁹¹ I Appellants contend that the statute is unconstitutional under the due process clause because of vagueness. We set out the test in this regard in Lashley v. State, 10 Md. App. 136 , 142: “The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law.

No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed of what State law commands or forbids; consequently, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Lanzetta v. New Jersey, 306 U. S. 451 ; Connally v. General Construction Co., 269 U. S. 385 .” Appellants’ claim of unconstitutional vagueness here centers upon the clause “if the surrounding circumstances are such as to indicate to a reasonable man that such person has no apparent lawful business to pursue at such place.” They assert (a) the meaning of “lawful business” is obscure; (b) it is made more obscure because it is not whether such person in fact had lawful business but whether it would appear so to a reasonable man in the surrounding circumstances; (c) “surrounding circumstances” in itself is vague. (a) Appellants ask: “Did the legislature intend to exclude persons from aimlessly meandering in a park?

That is what parks are for, yet it is a strange lexicon in which ‘business’ includes its antithesis, ‘idling.’ Is a person engaged in ‘business’ if he enters an art museum not to look at the paintings, but to get out of the rain, use the toilet, ¹⁹² or keep a tryst? Is a student engaged in ‘business’ if he enters a University physics building to discuss sports, sex or politics with a professor or another student?” We agree that the legislature did not intend “to sterilize public space by limiting its use to ‘business’ in the conventional sense of that term,” and it is correct that “if an esoteric meaning was intended, it is not stated in the statute.” But we think, as the United States District Court for the District of Maryland thought in Dunkel v. Elkins, et al., 325 F. Supp. 1235 (Md.), in considering the constitutionality of the phrase “lawful business” within the contemplation of Code, Art. 27, § 577 B concerning trespass upon grounds of the University of Maryland, State colleges, community colleges, or any public school, that any constitutionally protected activity is a “lawful business” within the meaning of the statute. Although § 577 A (1) does not define what activities are constitutionally protected, the range of uncertainty inherent in the language is not such as would “broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Aptheker v. Secretary of State, 378 U. S. 500, 508 , quoting Shelton v. Tucker, 364 U. S. 479, 488 . We do not believe that the phrase “lawful business” is so unprecise and has so uncertain a meaning that it fails to inform a defendant of the charge against him.

We find that the statute does not offend the Due Process Clause of the Constitution because of it. (b) and (c) Appellants argue that “[t]he situation is made much worse by the fact that the test is not whether the accused actually had ‘lawful business’ but whether it would appear so to a reasonable man,” and, they add, the reference to “surrounding circumstances” introduces still another element of vagueness. As we construe the statute an authorized employee may properly request a person to leave a public building during those hours of the day or night when it is regularly closed to the public if the surrounding circumstances are such as to indicate to a reasonable man that ¹⁹³ the person has no apparent lawful business to pursue. This “lawful business” clause is a requirement for the notice rather than for the guilt of the offense.

In other words, although an effective notice may be given if the surrounding circumstances are such as to indicate to a reasonable man that the person notified had no apparent lawful business to pursue, the criterion for guilt upon failure to obey the notice is that the person in fact had no lawful business to pursue. This construction obviates the absurd result that a person shown to have actual business to pursue could be convicted of the offense because the surrounding circumstances at the time of the notice were such as to indicate to a reasonable man that he apparently did not. We find the clear legislative intent to be that guilt be predicated not on apparent but actual lack of lawful business. The title to ch. 552, Acts 1966, which added the new § 577A to Art. 27 under the subtitle “Trespass”, stated, inter alia, that it was “* * * providing that any person, not having lawful business therein * * * who refuses or fails to leave a public building * * * upon being requested to do so by an authorized employee * * * shall be guilty of a misdemeanor, * * (emphasis added).

Thus the legislative intent was to preserve the security of the places designated, during hours when they are regularly closed, against individuals who remain there after notice, without any lawful purpose. So construed the statute clearly sets forth the type of conduct which is forbidden and specifically describes the nature of the required warning to leave. This construction also answers appellants’ argument that the “unreasonable man” standard is acceptable in tort law but is repugnant to a clear definition of prohibited conduct, citing United States v. Cohen Grocery Co., 255 U. S. 81 , for we have found that the “unreasonable man” standard applies to the notice, much as it applies to probable cause to arrest, and not to the prohibited conduct. The statute declared unconstitutionally vague in Cohen made it unlawful to charge an unreasonable rate in handling or dealing in necessaries so as to ¹⁹⁴ leave open “* * * the widest conceivable inquiry” and to forbid “* * * no specific or definite act.” At 89.

Unlike the statute before us, “unreasonable” related to the prohibited act, but we do not find, in any event, that Cohen established, as appellants claim, “that the tort test of ‘reasonableness’ is too indefinite for penal legislation. See Amsterdam, The Void-for-Vagueness Doctrine, 109 U.P.L.Rev. 67 (1960), note 139 at 93. In Adderley v. Florida, 385 U. S. 39 , the Court held constitutional a statute which made a crime of “trespass with a malicious and mischievous intent.” It felt that this phrase narrowed the scope of the offense rather than broadening it, and found that “there is no lack of notice in this law [ Fla. Stat. § 821.18 (1965)], nothing to entrap or fool the unwary.” At 42.

It would seem that a statute is not unconstitutionally vague as too broad and all embracing if it prescribes a specific type of conduct and we think that § 577A (1) does so. Compare Edwards v. South Carolina, 372 U. S. 229 , distinguished in Adderley . Appellants seek to equate the statute here with anti-loitering statutes, making criminal such conduct as “loitering”, “loafing”, “having no visible means of support”, and “not giving a good account of himself.” They cite a number of cases in which such statutes have been held to be unconstitutionally vague. We do not feel that the statute here is comparable to anti-loitering statutes.

Section 602 (o) of the California Penal Code contains language identical to that in the statute before us: “Refusing or failing to leave a public building of a public agency during those hours of the day or night when the building is regularly closed to the public upon being requested to do so by a regularly employed guard, watchman, or custodian of the public agency owning or maintaining the building or property, if the surrounding circumstances are such as to indicate to a reasonable man that such person has no apparent lawful business to pursue; is guilty of a misdemeanor.” ¹⁹⁵ The District Court of Appeal of California, holding in In Re Bacon, 49 Cal. Reptr. 322 that the statute was constitutional said, at 334-335: “Section 602, subdivision (0) , is simply a trespass law intended to preserve the security of public buildings during hours when such buildings are regularly closed against individuals who remain therein without any lawful purpose.” See also Parrish v. Municipal Court, 65 Cal. Reptr. 862 (1968). The rationale upon which the various anti-loitering statutes were voided is not apposite to the statute here which is a trespass statute with notice, clearly setting out the type of conduct forbidden and specifically describing the nature of the required warning to leave.

By its terms it is aimed at conduct of one limited kind which it understandably and clearly spells out. We find that the conduct which Code, Art. 27, § 577A (1) forbids is not expressed in terms so vague that men of common intelligence must necessarily guess at their meaning and differ as to their application. We hold that the statute does not violate due process of law for vagueness. II On the premise that Art. 27, § 577A is an anti-loitering, anti-idling measure aimed at people who appear not to have lawful business, appellants contend that it denies due process and legal protection “because it is an unwarranted and irrational interference with the personal liberty to idle.” The statute is codified under the subtitle “Trespass” and we have found that it is simply a trespass upon notice law.

It is not within the category of the anti-loitering statutes and its provisions are not comparable to such statutes. It does not prohibit idling or loitering per se in public places but intends to preserve the security of public buildings under designated conditions. We do not agree that to do so interferes with the exercise of personal freedom without serving a legitimate public interest. It is not necessary to discard common sense to adhere to constitutional rights.

No right to idle is unconstitutionally limited by forbidding presence ¹⁹⁶ in a- public building after due notice at such hours when the building is regularly closed to the public to those who have no lawful purpose to pursue there. In such circumstances there is no constitutional right to loiter in the building. We do not think that the statute invites arbitrary enforcement nor does it make selective enforcement inevitable. Ill Appellants claim the equal protection clause in its function of precluding irrational discrimination as between persons or groups of persons in the incidence of a law is violated by the statute.

We agree that the essential purpose of the statute is to permit the exclusion of potential trouble makers from public facilities, but we point out that they may be excluded only on specific conditions. The contention that the statute irrationally classifies idlers as potential trouble makers so as to be a denial of equal protection is answered in II swpra. Appellants set out other classifications established by the statute which they claim are irrational. a) Appearance in Lieu of Reality This argument is based on the assertion that the statute “punishes not the person who actually has no lawful business on public space, but only the one who appears to have no such business.” We have construed the statute as punishing only the one who actually has no lawful business there. / b) Discrimination Because of Personal Appearance Appellants say the statute “permits and encourages the exclusion of persons from public space because of their personal appearance — because they have long hair or dark skins, wear peace buttons, or are poorly attired.” They conclude that the State violates equal protection when it makes criminality depend on personal appearance. The answer /is that the statute here does not do this.

If a person ha!s lawful business to pursue he has not ¹⁹⁷ committed the offense proscribed regardless of his physical appearance or attire. c) Discrimination at an Employee’s Whim Appellants urge: “The equal protection defects of § 577A are increased, not eliminated, by the fact that criminality thereunder also depends on a refusal to leave at the request of an authorized employee. The statute prescribes no standards for the authorized employee. He is free to pick and choose, for no reason or for a bad reason (such as skin color), which apparent idlers may remain on public property.” The answer is that the premise of the argument is again incorrect. Request to leave is not at the whim of an authorized employee.

First, it may be made only “during those hours of the day or night when the building, grounds, or specific portion thereof, is regularly closed to the public.” Second, the test for the propriety of the request is not subjective but objective. It is not whether an individual employee felt that the person has no apparent lawful business to pursue nor is it whether the person asked to leave thought he had lawful business to pursue. Rather it is whether the surrounding circumstances were such as to indicate to a reasonable man that such person had no apparent lawful business to pursue at such place. This argument as advanced by appellants has been regularly presented in cases involving vagrancy or anti-loitering statutes, e.g.

Smith v. Hill, 285 F. Supp. 556 (E.D.N.C. 1968). In general the cases relied on by appellants, while reversing convictions for refusal to leave a public place upon order of a public official, were decided on the' ground that the order violated a constitutional right to remain which was clearly possessed by the accused. So in Wright v. Georgia, 373 U. S. 284 the black petitioners were convicted of breach of the peace for playing basketball in a park because it was customarily reserved for whites. And in Brown v. Louisiana, 383 U. S. 131 blacks refused to leave a public library where whites were welcome.

So in such cases equal pro ¹⁹⁸ tection was denied because the accused were ordered from a place where they had a right to be, while others were arbitrarily allowed to remain. But in the statute here any person may properly remain if he has a lawful purpose; only those with no lawful purpose to pursue may not remain and be punished for refusing or failing to leave. “[0]f course statutes should be construed whenever possible so as to uphold their constitutionality.” United States v. Vuitch, 402 U. S. 62 , 9 Cr L 3071, 3073, decided 21 April 1971. “It is accepted that the Court should not strike down a statute as unconstitutional unless it violates the Constitution unmistakably. * * * Consequently, where there is any doubt of the validity of a statute, the Court will resolve the doubt in favor of the interpretation that will reconcile it with lawful limitations of legislative power.” Heslop v. State, 202 Md. 123, 130 . (citations omitted) We hold that Code, Art. 27, § 577A (1) is constitutional on its face. THE WARRANTS The warrant 2 in each case read, in pertinent part, substantially that the accused: “on the 24th day of March 1970, at Prince George’s County, Maryland, did unlawfully violate Article 27, Section 577A, of the Annotated Code of Maryland, 1957 Edition, to wit: did refuse to leave the Skinner Bldg., a public bldg, at Maryland University, College Park, P.G. Co., Md., to wit: after the said bldg, was closed to the public contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.” ¹⁹⁹ Each appellant contends that the warrant charging him is defective in that it does not charge an offense and is not sufficiently informative. “It has been stated that the purpose of a criminal charge — be it a state warrant, an information or an indictment — is twofold, that is, the charge must so characterize the crime and describe the particular offense ‘as to put the accused on notice of what he is called upon to defend and to prevent a future prosecution for the same offense.’ ” Lank v. State, 219 Md. 433, 436 .

See Weddle v. State, 4 Md. App. 85, 92 . Each indictment here fulfilled this twofold purpose. It informed the accused that he violated a specific law, “Article 27, Section 577A of the Annotated Code of Maryland, 1957 Edition,” and additional language in the warrant with respect to the public building being closed to the public narrowed the charge to subsection (1) of § 577A. An offense was clearly charged, for unlike Baker v. State, 6 Md. App. 148 , the law alleged to be violated was here expressly designated and by so doing the language of the statute was incorporated in the warrant by reference.

The accused was fully on notice of what he was called upon to defend and if he were again charged with the offense that he was being twice placed in jeopardy would be readily apparent. In any event “ [t] he rule which seems to be generally recognized draws a line of demarcation between an indictment or information [or warrant] which completely fails to state an offense and one which alleges all the elements of the offense intended to be charged and apprises the accused of the nature and cause of the accusation against him, even though it is defective in its allegations or is so inartfully drawn that it would be open to attack in the trial court.” Ward v. State, 9 Md. App. 583, 587 . We find that each warrant was sufficient to charge an offense. We also find that each warrant was sufficiently informative as reasonably to put the accused on notice of the particular act violating- § 577A, “to wit: did refuse to leave the Skinner Bldg., a public bldg, at Maryland University, College Park, P.G.Co., Md., to wit: after the said ²⁰⁰ bldg, was closed to the public.” The hour of refusal to leave, the identification of the authorized official who requested the accused to leave, and a description of the surrounding circumstances existing when the request was made may have been matters of proof at the trial, but were not essential to the validity of the warrant.

And we note that each accused could have moved for a bill of particulars under Rule 715 if he desired additional information with respect to the charge. We hold that the lower court did not err in denying motions to dismiss the warrants. THE INSTRUCTIONS Appellants claim prejudicial error in the court’s instructions with respect to reasonable doubt and the burden of proof. After discussing the presumption of innocence and the consideration by the jury of the evidence, the court advised the jury: “Then the presumption of innocence leaves the defendant when you are satisfied in your mind that the defendant is guilty beyond reasonable doubt of each and every element of the crime as charged.

Now, when I say ‘beyond a reasonable doubt’ I don’t mean beyond a suspicion or beyond any doubt or any flimsy reasoning of doubt, I mean a doubt that is based upon reason. As an example, when you deal with the more important events in your life such as giving birth to a child, getting married, christening a child, buying a home, entering a business, going to college — these are big and important events in your life. And during the consummation of one of these events if anything should come to your mind or is brought to your attention that would cause you to pause or hesitate before you went forward and make you drag your feet, in other words, if you got to the altar and you said no, ²⁰¹ then you would have a reasonable doubt. That is a doubt that is based upon reason because it is a doubt that is based upon reason and the doubt is formed by a quality of thought and subject matter.

It is not a trivial matter such as paying an oil bill or an automobile accident or something like that, it is a vital thing. If you have a doubt that is based on that reason, that degree of reasoning, then it is your duty to acquit. On the other hand, if after considering the testimony of both sides you are convinced in your mind beyond a reasonable doubt, that is, the scales of justice have started downwards and met an even plateau and then they sink to the left in favor of the State, the State has proven a greater degree, then they have overcome that reasonable doubt and then you have likewise the duty and obligation to convict, as you may so find from the evidence. That is entirely your function.

Of course, it must be a unanimous verdict of all twelve of you. I advise you, of course, that this is a very important case, as you know. It affects the lives of many young children. But you are to apply the law without sympathy, apply it as you see it to the facts as they have been developed.

If you have been satisfied beyond a reasonable doubt the defendants are guilty of one count of these three counts then you will return a verdict of guilty. If you are not so satisfied then you shall likewise return a verdict of not guilty.” Appellants objected to the “vital” language of the charge, Rule 756 f, but not to the “scales” language. However, they suggest that we take cognizance of the latter as plain error material to their rights. Rule 756 g.

As to the first alleged error appellants construe the court’s remarks as “unmistakedly” instructing the jury that “one can have a reasonable doubt only if the sub ²⁰² ject matter is ‘vital’ — like marriage — and not if it is ‘trivial’ — like an automobile accident.” They conclude: “If the jury thought, as well it might, that the sit-in at the Skinner Building was more classifiable as a ‘trivial’ matter like an automobile accident than as a ‘vital matter’ like saying ‘No’ at the altar, it would not be able, under the trial court’s instruction to have a reasonable doubt.” It seems that the jury were not inexperienced. The court observed in its charge, “Of course you know by now, as rather experienced jurors, that the Constitution of Maryland provides that the jury in a criminal case are judges of both the facts and the law * * We do not believe that the jury was misled by the challenged instruction, particularly when the instructions are considered as a whole. The court was not defining reasonable doubt, it was attempting to explain it. Opinion has been expressed that “the English language is not adequate to give a specific definition of ‘reasonable doubt’ that would simplify its meaning, for the rule requiring that the jury must be satisfied beyond a reasonable doubt is generally as simple and intelligible as a guide for the jury as any rule that could be formulated.” Lambert v. State, 193 Md. 551, 559 .

The Court held in Lambert that “after the judge in a criminal trial instructs the jury that the State must prove the charge beyond a reasonable doubt in order to convict, it is not erroneous to instruct the jury that evidence is sufficient to remove a reasonable doubt when it convinces the judgment of an ordinarily prudent man of the truth of a proposition with such force that he would act upon that conviction without hesitation in his own most important affairs.” At 560. In Thompson v. State, 4 Md. App. 31 we approved a charge which explained that evidence sufficient to establish a fact beyond a reasonable doubt means “such evidence as you would act upon in a matter involving important affairs in your life or in your own business or with regard to your own property. Now if the evidence is such that you would act upon it in very important matters in your own life then it is sufficient to convict in a ²⁰³ criminal case.” At 35. We feel that the instructions here in effect explained reasonable doubt in terms of very important matters in the jurors’ lives.

It may be that more apt illustrations could have been used but we do not think that the jury was confused thereby. We find no prejudicial error. Appellants construe the “scales of justice” part of the charge as advising the jury that they might convict on a preponderance of the evidence. Rule 756 g clearly spells out that on appeal a party may not assign an error in the instructions as of right unless (1) the particular portion of the instructions given was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of objection were stated at the time.

Ordinarily, states the Rule, no other error will be considered by the appellate court. The reason for the Rule as a prerequisite to appellate review is a salutary one, being designed to afford the trial court an opportunity to correct inaccuracies in its instructions. Parker v. State, 4 Md. App. 62; White v. State, 8 Md. App. 51 . If trial counsel here felt that this part of the charge needed correction or amplification they could have called it to the court’s attention.

Apparently they did not think that it did, for no objection was made. But now we are asked to consider that portion of the charge to have been clear error, even though competent and experienced counsel at the time did not so consider it, and to correct it as material to appellants’ rights. The language now challenged may not be isolated from the other explanations of reasonable doubt given by the court. What the charge in its entirety conveyed to the jury was that at first the scales dip in favor of the accused by the presumption of his innocence.

Then as the prosecution adduces relevant and material evidence found credible by the jury they incline in favor of the State, reach an even balance and finally pass that balance on the State’s side. When they have reached the point of proof beyond a reasonable doubt, the evidence is sufficient to convict. We do not endorse the language used but we cannot say that on the ²⁰⁴ instructions given the jury clearly could convict on a preponderance of the evidence. We find no clear error of which to take cognizance.

THE SUFFICIENCY OF THE EVIDENCE We have determined that the statute prescribing the offense charged was constitutional on its face, that the warrants on which appellants came to trial were valid and that the cases were submitted to the jury without prejudicial instructions. We now turn to questions presented as to the sufficiency of the evidence, before us on the denial of motions for judgment of acquittal made at the-close of all the evidence. See Williams v. State, 5 Md. App. 450 . The questions go to the sufficiency of the evidence in two areas only: (1) with regard to refusal or failure to leave the public building, and (2) with regard to having lawful business to pursue in the building.

(1) Four of the appellants, Marylyn Ann Kray and David J. Loomis, by their own testimony, and Stephen G. Berk and Charles H. Kennedy, by testimony of police officers who arrested them, were shown to have failed to leave the public building after a request to leave and they so concede in the brief. Edward Richard Guthrie and Paul Lester Woomer claim that there was no evidence to show that they had ever been in the building “much less that they had refused to leave the building.” Each of the remaining fifty-three appellants 3 state in the brief that “the evidence shows that he was present when the warnings to leave were given” but claims that it did not show he refused to leave. The building involved was the Skinner Building on the campus of the University of Maryland at College Park. It is owned by the Board of Regents of the University, a State instrumentality.

The lower floor contains classrooms and offices of the departments of Philosophy and ²⁰⁵ General Education. Laboratories of the Microbiology Department are on the second floor. The central telephone equipment for the entire University and an auditorium are in the basement. The University General and Academic Regulations for 1969-1970 provide: “UNAUTHORIZED USE OF BUILDINGS — except for properly scheduled classes or meetings, classroom, administration, and recreation buildings are closed to general student use on holidays, Saturday afternoons, Sundays, and after 8:00 P.M. during the week.

Individual students may use these buildings or facilities with written permission from a member of the faculty or the administrative staff.” However, in practice, classes were at times held until 10:30 P.M. and administrative personnel usually closed classroom buildings at 11:00 P.M. The events of 23 March 1970 and the early morning hours of the next day were the culmination of a controversy which arose over the Philosophy Department’s refusal to grant tenure to two philosophy professors. Some students at the University met with the Student-Faculty Advisory Board and it was decided that á report of that discussion would be given to the general student body at an open meeting at noon on 23 March in the Skinner Building auditorium. The faculty of the Philosophy Department recommended to Dr. Walter Waetzen, Vice President for Administrative Affairs at the University, that there be no termination time set for the meeting, that philosophy classes for that