Downs v. State

Gilbert, J., delivered the opinion of the Court. The appellant, John Edward Downs, was convicted by a jury in the Circuit Court for St. Mary’s County of disorderly conduct, resisting arrest, and assault and battery. Appellant was sentenced to terms of sixty days in the county jail and to two concurrent three-year sentences under the jurisdiction .of the Division of Correction. A sentence review panel, convened pursuant to Md. Rule 762 c 2, altered the original sentences.

The panel resentenced appellant to sixty days, three years and three years, respectively under the jurisdiction of the Division of Correction. All sentences were made concurrent and they were suspended. The appellant was placed on probation “. . . for an indeterminate period. . . .”* 1 ²⁵⁵ On appeal to this Court, appellant challenges the sufficiency of the evidence as to the disorderly conduct charge. He further complains of the trial judge’s advisory jury instructions as they related to appellant’s failure to obey a command of a police officer.

We shall discuss the latter contention first. Appellant recognizes that he failed to except to the trial judge’s instructions, and, therefore, under Md. Rule 756 g he may not now raise any question of error unless there was “plain error” in the instructions. Judge Powers, writing for this Court in Brown v. State, 14 Md. App. 415, 422 , 287 A. 2d 62, 65 (1972), cert. denied, 265 Md. 736 (1972), explained “plain error.” “. . . [A]s a general guide, we may say that under Rule 756 g we will take cognizance of and correct an irremediable error of commission, but not an error of omission. Of course, the error must be plain, and material to the rights of the accused, and, even then, the exercise of our discretion to correct it should be limited to those cases in which correction is necessary to serve the ends of fundamental fairness and substantial justice.” The trial judge had instructed the jury that: “. . .

If you find that the Government [sic] has proven beyond a reasonable doubt that the Defendant failed to obey a policeman’s command to move on when not to do so may have endangered the public peace, you may find the Defendant guilty of the misdemeanor of disorderly conduct.” While the quoted instruction may be correct as a general principle of law, it was erroneous under the circumstances of this case because there was no evidence whatsoever of the appellant’s being told to “move on”. According to the arresting officer, Trooper Taylor of the Maryland State Police, the charge of disorderly conduct arose out of the appellant’s indecorous remarks that “ ‘. . .all the goddamn policemen in this County are no fucking good, they’re just ²⁵⁶ after me/ ” supplemented by a further comment that “[‘] . . . the fucking niggers in this County are no better than goddamn policemen.[’]” The trial judge’s seemingly gratuitous charge about failing to obey a police officer’s command to “move on” was made without benefit of any evidence to support it. It was an error of commission, but even so we do not believe that “fundamental fairness and substantial justice” require us to reverse the judgment. We so believe because we fail to see how appellant was prejudiced by the instruction.

There was, as we have said, no evidence upon which the charge could be bottomed. The jury, having heard the testimony, was aware that the police officer never testified to ordering appellant to “move on”. Appellant’s movements were not ever in question. The matter was limited to appellant’s verbalizing of tasteless remarks.

Furthermore, we think that had appellant requested that the erroneous instruction be corrected, the trial judge would have readily done so. The belated recognition by the appellant of the superfluous instruction “. . . does not call for us to correct it now.” Brown v. State, 14 Md. App. at 422 . The standard dealing with “plain error” is set by Rule 756 g. The recent decision of Dorsey v. State, 276 Md. 638 , 350 A. 2d 665 (1976) is not applicable thereto.

Appellant’s argument concerning the sufficiency of the evidence is founded upon the First Amendment to the Constitution as well as Art. 40 of the Maryland Declaration of Rights. Appellant strenuously argues that his freedom of speech has been abridged. The evidence in this case shows that the appellant was a patron in the Galley Restaurant in Lexington Park, Maryland. Trooper George W. Taylor of the Maryland State Police entered the restaurant for the purpose of meeting a complainant as well as having breakfast.

The restaurant was crowded. The trooper took a seat at a table approximately eight feet from where the appellant and three other persons were seated in a booth. The restaurant was fairly noisy. Taylor heard appellant exclaim “. . . in a moderate to above normal tone . . .” that, “ ‘. . . all the goddamn policemen in this County are no fucking good, ²⁵⁷ they’re just after me.’ ” Taylor said that he felt that the remark was directed toward him, but he let the matter pass. “After two, three, four minutes of this above-normal tone he [appellant] began talking louder and it was at the point of yelling, and he not only was at this time talking about the GD policemen and picking on him and beatin’ up on him, so forth, he started talking about [‘]the fucking niggers in this County are no better than goddamn policemenf]”.

Appellant acknowledged that he made a comment about police officers which included the profanity described by Taylor, but he denied making the racial slur. Taylor told the jury that approximately ten (10) percent of the patrons were black. He stated that two young black women were seated “. . . at the counter which was across from his [appellant’s] booth approximately four feet away.” When the racial slur allegedly was uttered by appellant, Taylor went over to the booth in which appellant was seated and “. . . advised Mr. Downs [appellant] that he would have to refrain from the profanity and tone down his tone of speaking, that it was disruptive. . . .” Appellant purportedly replied, “ ‘Well, who in the fuck said anything to you, anyway? You’re not in this goddamn conversation.’ ” Taylor warned that if appellant did not “ ‘. . . refrain from . . . yelling and . . . [using] profane language . . he would be placed under arrest.

Appellant informed the trooper that, “ ‘You ain’t bad enough to place me under arrest.’ ” Appellant was wrong. He was placed under arrest by the trooper. When the trooper grabbed appellant by the arm the appellant, according to the trooper, “. . . broke loose . . . and struck . . . [the trooper] across the arm and left part of . . . [his] chest.” A struggle ensued with the trooper eventually prevailing. We note that at the time of arrest and at the time of trial appellant was carrying what he apparently believed to be a “license for police baiting.” Appellant, at the trial, produced a page from an unidentified publication in which the following was reported: “LAW AND ORDER You can call your local cop a MOTHER (fornication ²⁵⁸ expletive deleted) PIG or any other name and there is NOT A THING he can do to you LEGALLY, not even tell you to shut up. . . .

The U.S. Supreme Court has said so INDIRECTLY by refusing to back Arkansas in a recent COP BADMOUTH case. . . .” Perhaps appellant would have exercised more discretion had he been mindful of an old folk saying that, “It ain’t the things you don’t know what gets you into trouble; it’s the things you know for sure what ain’t so.” Best Quotations for All Occasions 126 (L. Henry 1948). Appellant was tried in the circuit court on a Statement of Charges, 2 after praying, at the District Court, a jury trial. Md. Ann. Code, art. 27, § 123 (c) provides: “No person shall act in a disorderly manner to the disturbance of the public peace, upon any public street, highway, . . . place of public worship, . . . or amusement in any city, town or county of this State, or in any store during business hours. ...” 3 Appellant asserts that in order to be punishable, the words that he used in his conversation with the two women and a man that were seated in the booth with him, must be either “obscene” or “fighting words.” Reese v. State, 17 Md. App. 73 , 299 A. 2d 848 (1973). There was within this record no evidence that the objectionable language was erotic or produced “psychic stimulation.” Reese, 17 Md. App. at 80-81 , citing Cohen v. California, 403 U. S. 15 , 91 S. Ct. 1780 , 29 L.Ed.2d 284 (1971). 4 To be obscene in the Constitutional sense, the words employed must conjure up in the mind of those confronted with the words of the expression some erotic psychic stimulation.

Reese v. State, supra; Matter of ²⁵⁹ Nawrocki, 15 Md. App. 252, 260 , 289 A. 2d 846, 851 (1972). See also Cohen v. California, supra. Consequently, we must determine whether the epithets hurled by appellant fall within the definition of “fighting words.”