Caldwell v. State

Thompson, J., delivered the opinion of the Court. James Caldwell, appellant, was tried and convicted by the Circuit Court for Caroline County, at a court trial, of unlawfully making use of telephone facilities for repeated calls, with intent to annoy, abuse, torment, harass or embarrass one Geraldine Breeding. Md. Code, Art. 27, § 555A. We reverse the conviction due to the insufficiency of the evidence to show a specific intent to annoy as required by the statute.

I FACTS At approximately 10 a.m. on January 16, 1974, the complaining witness, Geraldine Breeding, received a telephone call at her place of employment, the Caroline Nursing Home. Due to the importance of the contents of that call we quote in full Mrs. Breeding’s testimony in that regard: “Q. And what was the substance of that conversation? A. Well, it was a gentleman caller and he was calling to try to pick me up. In other words, he was saying that he would like to meet up with me and that he would meet up with me or talk to me before the day was over and he gave me all the information about hisself and I thought it was a joke.

I thought it was somebody playing a prank on me and I was just ... I just kept talking to him to try to find out who it was and he wouldn’t give me his name. All he would say was ‘It was Jim.’ Q. And how long did this conversation take, would you say? ⁹⁶ A. Well, I kept on talking. I couldn’t get rid of him.

He kept talking and we had a new admission that came in at approximately eleven o’clock and then I did hang up, because the new admission I had to admit. * * * * A. He told me that he lived near Denton in a new home. That he was a painter. That he had a yellow Grand Prix. A bronze colored El Camino and a van that he used for work.

That his wife worked in Denton. That he had a twelve (12) year old daughter and .... let’s see .... He said that he had seen me many times on the street in Denton, but that I wouldn’t pay a second glance in his direction and he kept saying ‘You are not listening to me.’ * * * * He wouldn’t tell me who it was. He said that if I knew who it was that I would probably wouldn’t want anything to do with him and he just kept talking and talking and it was really very disturbing and upsetting because I didn’t know who I was talking to. * * * * Q. What other information, if any, did the caller give that indicated he knew your habits and whereabouts?

A. Well he said that he knew that I had a green Oldsmobile and that he had ... he knew that I worked out at the nursing home because he had asked his employees. One of his employees knew me and he had asked his employee who I was and where I worked; and he also told me thát he had been by my house many times. He knew exactly where I lived and he had been by there and looked it over many times, which upset me quite a bit. * * * * *? He said he could not find my phone number in the book because he did not know my husband’s name... * * * * He said he had asked one of his employee’s who I was and where I worked so that he could get in touch with me. * * * * A. Okay.

I said ‘Hello’, and he said ‘Hello, Gerri.’ And I said ‘Yes.’ And he said ‘You will probably think I am a nut.’ And then he kept on and he said that he had been wanting to call me and he had found out all of the information about me from one of his employees. * * * * A. As to where I worked and my name and where I lived and then I asked him what was the call . . . what was it about . . . why was he calling me and this was when he said that he had wanted to meet up with me and see what would become then. And then he gave me all of this information about hisself. * * * * A. Not until I kept asking. After two or three times who it was and he then said his name was Jim and I said ‘Jim who?’ and he would not give me his last name because he said if I knew who it was that I would not talk with him anymore and I told him that I did not particularly care to talk to anybody that I did not know anyway and he kept right on talking and saying that he would either meet with me or call me again before my quitting time. * * * * A. Other than that he just kept saying that he ⁹⁸ wanted to meet up with me and I asked him if he was having troubles with his wife or something. Why would he call me?

Why would he pick on me and he said he didn’t usually make a practice of this, which I found out later was wrong.” During the course of this first call another employee at the home, Wanda Clark Lane, listened in to the conversation at Mrs. Breeding’s request. Mrs. Lane testified as to the contents of the first call as follows: “Q. What was the purpose of the caller calling Mrs. Breeding as far as you were able to determine? A. He stressed that he wanted to meet her and get better aquainted. Q. How long did you listen in on the phone conversation?

A. A . . . probably half hour, because we had a new admission at that time and Mrs. Breeding told him she had to hang up because the patient was admitted or was there to be admitted. Q. Did he indicate any .... or did the caller indicate any other, reveal any other information about himself during the remainder of this conversation? A. He told her that he . . . she had seen him, but in a town like this she wouldn’t take a second notice. Q. Did Mrs. Breeding say anything to the caller that you recall?

A. She kept saying, this is a joke, my husband put you up to it. * * * * A. Mrs. Breeding asked him was he having problems with his family . . . with his wife, and he said ‘No, he couldn’t really say that he was having problems.’ That he had admired her for some time and wanted to get better acquainted. Q. Do you think that he meant that? *? A. Well, he sounded like it. Q. He did?

A. (Nodded head)” This first conversation lasted between 45 minutes and an hour. Mrs. Breeding testified that she was very upset by the call because she did not know the true intention of the caller. At approximately 1:30 on the same day, a man with a briefcase, identified at trial as appellant by Mrs. Breeding, walked into the Caroline Nursing Home, smiled at her and left.

Approximately 20 minutes later, she received another call about which she testified as follows: “Q. Now was there any relationship or similarity between the voice of the second call and the one from the first call? A. Oh yes. Definitely. And he ... .

Q. Was it the same voice? A. And he said his name over again. He said ‘This is Jim.’ Q. Well did the caller indicate whether ... at two o’clock or thereabouts whether or not he was the same one who had called at ten? A. Yes he did.

And he said that he had . . . that I couldn’t say that I had not seen him before, because I had just looked him in the face not more than fifteen minutes before that. Q. Now did the caller on the second call give you any additional information other than that which he disclosed at the ten o’clock call? A. No. The only thing was he kept telling me to say that he was colored. He kept saying ‘S.ay it.

Say it.’ Because he . . . that was what he meant in the first one I guess ... in the first conversation . . . was he kept saying ‘You are not listening to me.’ Q. Now how long did the second conversation take? A. About ten (10) minutes. ¹⁰⁰ Q. Now you said that the caller said you could not say you hadn’t seen him because you had just looked him in the eye some few minutes before that? A. Yes sir. * * * * A. He said that this . . . He said ‘This is Jim’ and he said T thought that I had better call you and tell you that I will not be able to be there later because I have an unexpected trip out of town, and that I just wanted you to know that you can’t say that you haven’t seen me because you just looked me in the face not more than fifteen minutes ago.’ And I said ‘Do you mean you have been in the home?’ and he said ‘Yes.’ I said ‘Are you here now?’ and he said ‘No.’, and that was it.

I told him I did not want him to call me ever again. I didn’t care who he was and I didn’t want anything to do with him.” As a result of the specific information given by the caller, Lynn Clark, a part-time receptionist at the home and daughter of Wanda Clark Lane, after speaking with some friends at school the following day, theorized that the caller was appellant, James Caldwell. This theory was developed because several years earlier appellant had on several occasions called Miss Clark to ask her out and that at one time he had spoken with her on the street. Acting on Miss Clark’s theory, one call was made to appellant’s home at approximately 4:15 p.m. on January 17, 1974 by Mrs. Lane.

The person who answered was asked if he was James Caldwell. The person answered yes. Mrs. Lane testified that she recognized the voice as that of appellant because he had called her home several years before asking to speak to her daughter, Lynn Clark. Mrs. Lane made another call to appellant’s residence between 4:15 and 5 p.m.

Mrs. Breeding testified that she listened in on the first call along with Lynn Clark, that Mrs. Lane asked the person who answered “to whom am I speaking with?” and that he said “James Caldwell.” From this Mrs. Breeding stated that the ¹⁰¹ voice was the same as the voice of the person who made the two calls the day before. Appellant denied making the two calls on the 16th. He admitted receiving a call late in the afternoon of the 17th, going to the police station immediately after the call to complain and riding past the Caroline Nursing Home on his way home. He also produced alibi testimony from his wife and a business associate.

II CONSTITUTIONALITY OF ARTICLE 27, SECTION 555A Section 555A of Article 27 of the Maryland Code provides as follows: “It is unlawful for any person to make use of telephone facilities or equipment (1) for an anonymous call or calls if in a manner reasonably to be expected to annoy, abuse, torment, harass, or embarrass one or more persons; (2) for repeated calls, if with intent to annoy, abuse, torment, harass, or embarrass one or more persons; or (3) for any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent. Any person violating any one of the provisions of this section is guilty of a misdemeanor, and upon conviction thereof, shall be subject to a fine of not more than $500.00 or to imprisonment for not more than three (3) years, or both, in the discretion of the court. (1961, ch. 165; 1970, ch. 669.)” Appellant was charged and convicted under clause (2) of that section. He claims that that clause is unconstitutional.

In essence he argues that clause (2) is vague and indefinite in that it does not provide a comprehensible standard of criminality against which a person can gauge his actions and it allows the crime to be defined by the sensitivities of the victim. This condition he claims is a denial of his right to due process under the 14th amendment to the United States Constitution and Article 23, Maryland Declaration of Rights. ¹⁰² The requirement that a criminal statute must fairly warn citizens which of their actions are criminal is a fundamental tenet of American jurisprudence. The Supreme Court has expressed this concept in a number of ways: “Living under a rule of law entails various suppositions, one of which is that ‘[all persons] are entitled to be informed as to what the state commands or forbids.’ Lanzetta v. New Jersey, 306 U. S. 451, 453 , 59 S. Ct. 618, 619 , 83 L. Ed. 888 .” Papachristou v. City of Jacksonville, 405 U. S. 156, 162 , 92 S. Ct. 839 , 31 L.Ed.2d 110 (1972). “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” Lanzetta v. New Jersey, supra at 453. “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law and 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.” Connally v. General Construction Co., 269 U. S. 385, 391 , 46 S. Ct. 126 , 70 L. Ed. 322 (1926). The difficulty of determining whether certain marginal cases are within the meaning of a challenged penal statute’s language, however, does not automatically render that statute unconstitutional for vagueness.

Robinson v. United States, 324 U. S. 282, 285, 286 , 65 S. Ct. 666 , 89 L. Ed. 944 (1945). In that regard, the Supreme Court stated in United States v. Petrillo, 332 U. S. 1, 7 , 67 S. Ct. 1538 , 91 L.Ed.2d 1877 (1947): “The Constitution has erected procedural safeguards to protect against conviction for crime ¹⁰³ except for violation of laws which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. ” Emphasis added). As a logical outgrowth of the above summarized “vagueness doctrine”, the Supreme Court has long recognized that a statute which might otherwise have been unconstitutionally vague can be saved constitutionally when it requires that the actor have a specific intent. In Screws v. United States, 325 U. S. 91 , 65 S. Ct. 1031 , 89 L. Ed. 1495 (1945), the Court stated at 101-102: “The Court, indeed, has recognized that the requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid.

The constitutional vice in such a statute is the essential injustice to the accused of placing him on trial for an offense, the nature of which the statute does not define and hence of which it gives no warning. See United States v. L. Cohen Grocery Co., supra. But where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law. The requirement that the act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain.

But it does relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware.” The concept was reiterated in Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342 , 72 S. Ct. 329 , 96 L. Ed. 367 (1952): “The statute punishes only those who knowingly violate the Regulation. This requirement of the ¹⁰⁴ presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the Regulation would be so unfair that it must be held invalid.” This rule was recently reaffirmed in Papachristou v. City of Jacksonville, 405 U. S. 156 , 92 S. Ct. 839 , 31 L.Ed.2d 110 (1972). There the Court struck down a vagrancy ordinance on vagueness grounds. The Court added however that the lack of a specific intent requirement in the statute weighed heavily in its decision.

It stated, “Nor are they [the citizens of Jacksonville] protected from being caught in the vagrancy net by the necessity of having a specific intent to commit an unlawful act.”Papachristou v. United States, supra at 163. The rationale behind the specific intent “exception" to the vagueness doctrine is easily understood and was succinctly stated in Note, Unwanted Telephone Calls — A Legal Remedy, 1967 Utah L. Rev. 379 , 388-389 n. 52 (1967): “The reasoning is that a person already bent on serious wrongdoing has less need for notice and that a citizen who refrains from acting with morally bad intent is not endangered by the statutory sanction. Note, Due Process Requirements of Definiteness in Statutes, 62 Harv. L. Rev. 77 , 85 (1948).” The portion of Article 27, § 555A under attack in the case at bar provides that: “It is unlawful for any person to make use of telephone facilities or equipment ...

(2) for repeated calls, if with intent to annoy, abuse, torment, harass, or embarrass one or more persons;” The statute obviously requires the state to prove that an accused had the specific intent to annoy, abuse, torment, harass or embarrass the person who receives the calls. This holding is in conformity with decisions in other jurisdictions. ¹⁰⁵ In United States v. Darsey, 342 F. Supp. 311 (E.D. Pa. 1972) the Court was faced with the problem of interpreting a section of the U.S. Code (Title 47, Section 223 (1) (d)) which provides that, “Whoever — (1) in the District of Columbia or in interstate or foreign communications by means of telephone — (D) makes repeated telephone calls .. . solely to harass any person at the called number; . . could be imprisoned for up to six months and fined not more than $500. After stating that § 223 (1) (D) was passed to deal with the problem which arises when repeated calls are made with the intent to harass even though the conversation is not of an obscene nature and even though the caller is not anonymous, the Court went on to discuss the requirements the section imposed on the prosecution and found that the specific intent to harass was necessary to