Hackley v. State

BARBERA, J. Appellant, Wendell Hackley, was convicted by a jury in the Circuit Court for Prince George’s County of second degree assault, reckless endangerment, and stalking. 1 The court merged the reckless endangerment conviction into the assault, and sentenced appellant on that conviction to ten years’ incarceration, with all but two years suspended. The court sentenced appellant on the stalking conviction to a concurrent term of five years’ incarceration, "with all but two years suspended and five years of supervised probation. Appellant’s sole argument on appeal challenges the sufficiency of the evidence to sustain his stalking conviction. For the following reasons, we shall affirm the circuit court’s judgment. • FACTS At the time of trial, Devora P. had known appellant for approximately thirteen years.

The two dated for some time and have a child, Adriana, who was born in October, 1991. Eventually, Ms. P. and appellant stopped seeing each other, and did not come into contact for a number of years. ⁵ Around 7:30 a.m., on November 17, 2001, Ms. P. was sitting in her car, preparing to leave for work. The car was parked in the driveway of her home. As she looked in the rear view mirror, she saw a man walking towards her.

She recognized the man as appellant when he reached her car. Ms. P. was surprised by appellant’s presence. Appellant repeatedly asked Ms. P., “Where’s my daughter?”, to which she responded, “Adriana is not here. She is with my mother.” Ms. P. testified that appellant reached in his coat pocket and pulled out a gun.

He then opened up the car door, pulled Ms. P. out of the car, and started hitting her on the head with the gun, cutting her. Ms. P. kicked appellant and screamed for her mother. Ms. P.’s mother called the Bladensburg Police Department, then went outside. After that, appellant let go of Ms. P. and left.

Officer Cowling responded to the scene and found Ms. P. with blood on her shirt and head. Ms. P.’s mother eventually drove Ms. P. to the hospital, where she received eight to nine stitches to her head. Over the next month, appellant made contact with Ms. P. on four more occasions. The first occurred when Ms. P. found two letters, in appellant’s handwriting, under her car’s windshield wiper.

The police were called and, upon arrival at Ms. P.’s home, removed the letters from the car’s windshield. One of the letters was addressed to appellant’s daughter, Adriana. Appellant wrote, among other things: I know your [sic] mad at daddy for hitting your mother but I had no control over that. I tried to warn her that I need you and her to help me because I was losing my mind.

When I was hearing voices they want me to hurt you and her. But I no [sic] I will never harm you but I can’t say that about her. What I think I did to her is nothing compared to what was going to happen that day. I came there to kill her and that’s the truth but when I was walking there from down the street I began seeing pictures of you in my mind of how ⁶ you would look, and I started crying because all I wanted was my little girl.

In a letter addressed to Ms. P., appellant wrote, among other things: I tried and I tried to warn you, how my mind was becoming crazy. I’m sorry for hitting you but that was not me, I told you when I use drugs another personality comes out of me, and he came over there to kill you on that day, but when I started walking towards the house I began crying because I wanted my family back (you and Dinky) but you laughed at me not knowing all the pain I’ve had built up inside of me for years. You have [sic] better listen because the only thing that saved your life that day was Adriana and my love for her. This is how it’s going to be[,] we will be a family together, or we (me & you) will die together because I couldn’t hurt her.

If I see you with another man in these next few weeks I’m shooting no questions asked and that’s a promise I will not break. I’m trying to warn you before I seriously hurt you, I think you now see what I’m capable of but that’s nothing compared to what I have done before, and will do it again if necessary. [T]he way you saw me is not the way I always look, but I used so much drugs about 8 days before you seen [sic] me. * * * I’m sorry for hitting you and if we become a family again it would never happen again, I promise. Rember [sic] that was a gun in my hand and I had intended to kill you that morning not me.... (I’m warning ⁷ you for the last time[.]) Take this very seriously[.] I will be watching you very closely[.] No men around you or her, you have until December 27 after that, no more warnings.

This time it will not be years to come there but hours. * ❖ * P.S. You no [sic] how my temper was, now it’s 5 times crazier, only when I do drugs. If y’all return never again will I do them[,] if not prepare for the worst. Do you know I still don’t even know if I came [over] there for real, or if it was a dream. I woke up with blood all over my hands[.] On a subsequent day, Ms. P. found two more letters placed under her car’s windshield wiper.

Again, the letters were in appellant’s handwriting. Again, Ms. P. called the police, who came and removed the letters from the windshield. The letter addressed to Adriana stated, among other things, Your no good mother has only ten days before the killing starts.... On your life and your sister somebody will die over there, and it might even be you.

She just doesn’t no [sic] how crazy and violent I’ve become all because of my love for you. I’m tired of looking at your pictures!,] the ones I have left and didn’t tear up. My moods v[a]ry so much I never no [sic] what I’ll do. But I do no [sic] you could change my whole way of life, but there is not a lot of time.

Whatever happens I will always love you. But time is near and I’m not playing. The letter addressed to Ms P. stated, among other things: “You have ten days left or the killing starts. Don’t think [the] police can stop me[,] they can’t stop me....

Play and you will die in ten days. But your [sic] not the only one, I will kill whoevers [sic] around when we kick those doors in. Bullets will ring out____” On the morning of December 14, Ms. P. went with her children next door to her babysitter’s house to ask the babysitter a question. As they were leaving the babysitter’s house, ⁸ Ms. P. saw appellant driving “up the street” in the cream colored Jeep he had driven on the day he had assaulted her a month earlier.

Ms. P. told the children to “[h]urry up [and] [g]et in the car.” As appellant drove closer, however, Ms. P. told them instead to “run to the house.” She and her children ran into her house and called the police. On December 16, a book bag was left on Ms. P.’s car windshield. Ms. P. called the police, who came and retrieved the book bag. Inside the book bag was children’s clothing, a basketball, and a note pad on which two letters were written by appellant.

The letter addressed to Adriana had written on the top of it: “the day you saw me.” In it appellant wrote, among other things: You do not have to run from daddy because of what your mother said to you or says to you about me.... It hurt me very badly when she told you to run in house, from me.... [N]ow she has made me more angry than I’ve ever been at her. I started to shoot her right there for telling you to run from me.... What I’ll do if I’m not allowed to see you a lot of people over there are going to get hurt badly.

I have enough guns to kill everybody in that house except you____ I’ve not even used drugs since I hit [Ms. P.] because I felt bad it had to come to that. [I]f that’s her son that was with y’all [sic], I’m going to show her how it [feels] to take a child from it’s parent and then, den[y] me of what Allah gave me. If I do not hear from y’all [sic], I will declare Jihad on her and everybody over there.... But I will warn her no more.... I still have three cars so she won’t know what I’m driving next time....

I see she still the stupid (B) I met 10 years ago, that I should [have] left alone the night I met her..... The second letter was addressed to Ms. P. In it appellant wrote, among other things: You’ve really done it [this] time, I left that note on your car for a reason. I said I was sorry because I was using drugs ⁹ when I hit you[,] it wasn’t me who hit you but voices made me do it.... But a strong warning to you, do not ever tell my daughter to run from me again or I’ll shoot you on the spot I promise that on drugs or not....

Don’t think that’s my only car because I have 2 more and plenty of bullets to go around. I started to stay there and shoot it out with police that came.... You have until the 27th Dec and I don’t care how many kids you got, but it’s me or the grave yard. That Jeep you seen [sic] was going to yours.... [T]hat little boy will be first to go I promise that on my daughter’s life the 27th is all you have [ ] as you can see I’m not playing no more.

I’m watching you even when you think I’m not there believe [me], make a mistake like this today and tell my daughter to run from me will cost you your life next time. Appellant testified in his defense. He admitted going to Ms. P.’s house on November 17. He explained that he had been “doing cocaine” for three days and was hearing voices.

The voices kept telling him to “Go get your daughter.” He remembered asking Ms. P., “Where[’s] my daughter?” He told Ms. P. that he loved his daughter, that he wanted to stop “doing coke,” and the only way he was going to stop was to make Adriana a promise. Appellant testified that he had told Ms. P. them “daughter was going to end up to be no freak like her,” to which she responded by kicking him. Appellant then pushed Ms. P., causing her to fall into her car seat. He saw that her head was bleeding.

Appellant denied ever having a weapon or a gun and he denied striking her in the head with a gun. Appellant admitted writing the letters we have mentioned, but claimed that he wrote them to Ms. P. in 1994. DISCUSSION Appellant challenges the legal sufficiency of his stalking conviction. The stalking statute in effect at the time of appellant’s actions read, in pertinent part, as follows: ¹⁰ (a) Definitions. — (1) In this section the following words have the meanings indicated.

(2) “Course of conduct” means a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose. (3) “Stalking” means a malicious course of conduct that includes approaching or pursuing another person with intent to place that person in reasonable fear: (i) Of serious bodily injury or death; or (ii) That a third person likely will suffer serious bodily injury or death. (b) Prohibited conduct. — A person may not engage in stalking. Md.Code (1957, 1996 Repl.Vol., 2001 Supp.), Art. 27, § 124. 2 Appellant argues that the terms “approaching” and “pursuing” in subsection (3) require that the stalker act “in the victim’s presence and with the victim’s awareness.” From this, appellant asserts that the letters he left on three occasions on the windshield of Ms. P.’s car do not come within the statute’s prohibition, because there was no evidence that he acted in her presence.

In a similar vein, appellant asserts that his conduct on December 14 does not come within the statute’s prohibition, because he was only driving down the street, and not “approaching or pursuing” Ms. P. He concludes that, because none of these acts can properly be considered in determining whether he engaged in a malicious “course of conduct” requiring a “series of acts,” what remains is the single act of his assault upon Ms. P. on November 17, which cannot alone establish the course of conduct needed for conviction of stalking. The State responds that the malicious course of conduct required by the stalking statute is not limited to conduct ¹¹ involving the defendant’s “approaching or pursuing” the victim, because the statute provides that the prohibited course of conduct merely “includes” approaching or pursuing the victim. Even so, the State additionally argues, the phrase “approaching or pursuing” does not require that the victim be actually present for and aware of the conduct. Resolution of the parties’ arguments requires that we employ principles of statutory construction. 3 The cardinal rule of statutory construction “is to discover and effectuate the actual intent of the legislature.” Deville v. State, 383 Md. 217, 223 , 858 A.2d 484 (2004).

Our inquiry begins with an examination of the plain language of the statute. Id. “We view the words of a statute in ordinary terms, in their natural meaning, in the manner in which they are most commonly understood.” Gillespie v. State, 370 Md. 219, 222 , 804 A.2d 426 (2002). “If the words of a statute are clear and unambiguous, our inquiry ordinarily ends and we need investigate no further, but simply apply the statute as it reads.” Id. We may neither add words to or delete words from “an unambiguous statute in an attempt to extend the statute’s meaning.” Id. “Giving the words their ordinary and common meaning in light of the full context in which they appear, and in light of external manifestations of intent or general purpose available through other evidence, normally will result in the discovery of the Legislature’s intent.” Harris v. State, 331 Md. 137, 146 , 626 A.2d 946 (1993) (internal citations and quotation marks omitted). “In the interest of completeness, however, we may look at the purpose of the statute and compare the result obtained by use of its plain language with that which results when the purpose of the statute is taken into account.” Id.; accord Chilcoat v. State, 155 Md.App. 394, 405 , 843 A.2d 240 , cent. denied, 381 Md. 675 , 851 A.2d 594 (2004). ¹² The statute we construe in this case is penal. As the Court of Appeals has observed, “It is a fundamental principle of statutory construction that criminal statutes are to be construed narrowly so that courts will not extend the punishment to cases not plainly within the language used.” Boffen v. State, 872 Md. 724 , 735, 816 A.2d 88 (2003) (citations and internal quotation marks omitted).

But, “[wjhile penal statutes are to be strictly construed in favor of the defendant, the construction must ultimately depend upon discerning the intention of the Legislature when it drafted and enacted the law in question.” Garnett v. State, 332 Md. 571, 585 , 632 A.2d 797 (1993). The Meaning of “Includes” We first consider the State’s argument that the stalking statute is not limited to a malicious course of conduct that involves “approaching or pursuing” the victim, because the statute merely “includ[es]” such conduct. Article I, § 30 of the Maryland Code states: “The words ‘includes’ or ‘including’ mean, unless the context requires otherwise, includes or including by way of illustration and not by way of limitation.” Md.Code (1957, 2001 Repl.Vol.), Art. 1, § 30. See also State v. Wiegmann, 350 Md. 585, 593 , 714 A.2d 841 (1998) (“Ordinarily, the word ‘including’ means comprising by illustration and not by way of limitation.”) (citation and internal quotation marks omitted).

Nevertheless, the Court of Appeals has observed that “the term ‘includes,’ by itself, is not free from ambiguity.” Liverpool v. Baltimore Diamond Exchange Inc., 369 Md. 304, 321 , 799 A.2d 1264 (2002). The Court said in Liverpool : “Includes” has various shades of meaning, and its interpretation “depends upon the context” in which the term is used. We have said that “[o]rdinarily, the word ‘include[s]’ means comprising by illustration [of a general term] and not by way of limitation.” We have also stated the term “includes” may “signal an expansion in meaning of previous language,” and may be interpreted to mean “and” or “in addition to.” ¹³ It has also been construed as a word of limitation or restriction. 369 Md. at 321-22 , 799 A.2d 1264 (citations and some internal quotation marks omitted). As it is used in the stalking statute, the word “includes” is a term of limitation or restriction.

The sentence in which the term appears reads: “ ‘Stalking’ means a malicious course of conduct that includes approaching or pursuing another person with intent to place that person in reasonable fear: (i) Of serious bodily injury or death; or (ii) That a third person likely will suffer serious bodily injury or death.” § 124(a)(3). Thus employed, the word “includes” has a meaning akin to “comprehends” or “embraces.” See Helvering v. Morgan’s Inc., 293 U.S. 121, 125 , 55 S.Ct. 60 , 79 L.Ed. 232 (1934). In other words, whatever else the course of conduct referred to in subsection (3) might involve, it must include the stalker’s “approaching or pursuing” the victim. Indeed, when the sentence that is subsection (3) is read in its entirety, and consideration is given to its structure and punctuation, we can discern no other reasonable interpretation of it.

Our interpretation of “includes,” moreover, adheres to the rule that penal statutes are to be construed strictly in favor of the defendant. We hold, therefore, that the crime of stalking requires proof that the defendant’s malicious course of conduct involves, at the least, “approaching or pursuing” the victim