Hackley v. State

WILNER, J. Petitioner, Wendell Hackley, was convicted in the Circuit Court for Prince George’s County of second degree assault, reckless endangerment, and stalking. Upon his conviction for stalking, he was sentenced to five years in prison, all but two of which were suspended in favor of probation. He appealed to the Court of Special Appeals, claiming that the crime of ³⁸⁹ stalking requires “approaching or pursuing” the victim and that the evidence failed to show that he engaged in that conduct. The intermediate appellate court agreed that “approaching or pursuing” was an element of the offense but affirmed the conviction on the ground that Hackley’s conduct amounted to approaching or pursuing his victim.

Hackley v. State, 161 Md.App. 1 , 866 A.2d 906 (2005). We granted Hackley’s petition for certiorari to consider the two questions he raised in the Court of Special Appeals. Although we believe that the Court of Special Appeals misconstrued the statute and shall hold that the crime of stalking does not require that the defendant approach or pursue his victim, its erroneous interpretation does not assist Hackley. We shall affirm the judgment of that court, and with it the stalking conviction.

BACKGROUND Most of the testimonial evidence in this case came from the victim, Devora P., and petitioner Hackley. Some of it was in dispute. As the State obviously prevailed, we view the evidence, and all inferences fairly deducible from the evidence, in a light most favorable to the State. State v. Albrecht, 336 Md. 475 , 649 A.2d 336 (1994), quoting Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).

We therefore accept the version testified to by Ms. P. Ms. P. had dated Hackley for an eight month period in 1991, during which she became pregnant. Her daughter, Adriana, was born in October, 1991. From the time they ended the relationship in 1991, Ms. P. had no contact of any kind with Hackley until November 17, 2001, when, about 7:30 in the morning, as she was sitting in her car in the driveway of her home about to go to work, Hackley appeared, walked over to the car and asked “Where is my daughter?” Ms. P., surprised to see him, replied that Adriana was not there, whereupon he reached into his pocket, pulled out a gun, opened the car door, pulled Ms. P. out, and began hitting her in the head with the gun. ³⁹⁰ Ms. P. called for her mother, who was in the house. When the mother came out, Hackley stopped hitting Ms. P., who, bloodied from the attack, ran into the house.

The mother called 911. The tape of the call was admitted into evidence and played for the jury. Ms. P. went to the hospital and received at least eight stitches to close her wounds. An arrest warrant was issued two days later charging Hackley with attempted murder 1 and first degree assault, although Hackley was not apprehended until December 28, 2001.

At some point, after November 17 and before December 16, Ms. P., as she was leaving to go to work, observed what turned out to be two letters from Hackley under the windshield wiper of her car. With respect to the first incident— the assault — Ms. P. testified that her car was parked in her driveway, which photographic exhibits showed is immediately adjacent to her house. Ms. P. called the police. An officer responded, retrieved the letters, and gave them to Ms. P. One of the letters is addressed to Ms. P., the other to Adriana.

In the letter to Ms. P., Hackley acknowledged hitting her. He claimed that it was not really he, however, as, when he is on drugs, “another personality comes out of me, and he came over there to kill you on that day.” Among other things, Hackley said in the letter that “[i]f 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.” In his letter to Adriana, he professed great love for the child, with whom he had had no contact for nearly 10 years, although he warned her “no playing with boys and no boy friend until you are 18 years old, No white boys or I kill with the quickness you can bet that ...” He again acknowledged having assaulted Ms. P. and told the child “[w]hat I think I did ³⁹¹ to her is nothing compared to what was going to happen that day. I came there to kill her and that’s the truth ...” The surreptitious leaving of letters for Ms. P. and Adriana on Ms. P.’s car occurred on two subsequent occasions.

On the first of those occasions, the letter addressed to Ms. P. began with the statement, “You have ten days left or the killing starts. Don’t think police can stop me ...” The letter to Adriana stated, “Your no good mother has only ten days before the killing starts. She thinks this is a game but she will find out very soon how real I am.” On the morning of December 14, 2001, Ms. P. and her children went briefly to a neighbor’s house to arrange for the neighbor to pick up the children, presumably from school. As they left the neighbor’s house, she saw Hackley coming up the street in the same truck he had used on November 17.

She and the children ran into her house, and she called the police. That was the last day she saw her dog. The dog had been outside on a leash. She found the leash cut and the dog gone.

Two days later, Ms. P. again called the police when she noticed a mysterious item on her car. The item turned out to be a bookbag that Ms. P. had never seen before, inside of which were some children’s clothes, a basketball, and four letters from Hackley, two addressed to Ms. P. and two to Adriana. The letters were more rambling than the earlier ones, but of the same tenor. They were threatening and asserted the futility of any attempt to stop Hackley from carrying out his mission.

In one of the letters to Ms. P., Hackley advised that “I watch you almost every day, remember I have an[] A1 rifle that could hit you from 2 football fields away so don’t play.” DISCUSSION At the time Hackley was charged, the crime of stalking was set forth in Maryland Code, Art. 27, § 124 (1996 Repl. Vol., 2001 Supp.). The offense is now codified, with only style changes, as § 3-802 of the Criminal Law Article. The substantive part of the statute provided that “[a] person may not ³⁹² engage in stalking” and set forth the penalties for a violation.

Subsection (a) defined “stalking” as “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.” (Emphasis added). That subsection, in addition, defined “course of conduct” as “a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose.” Hackley’s defense is a stepped one. He contends, first, that, despite the fact that the statute defines “stalking” as a “malicious course of conduct that includes approaching or pursuing another person,” approaching or pursuing another person is an essential element of the offense, and, unless the evidence showed that he approached or pursued Ms. P. in a series of acts over a period of time, his conviction for stalking cannot stand. Approaching or pursuing, he next insists, requires that the victim be aware of the fact that he or she is being approached or pursued, that the conduct must be committed in her presence.

The evidence here, he avers, did not suffice to make that showing — that, at worst, it showed that he approached Ms. P. on only one occasion — when he pistol-whipped her on November 17, 2001. Leaving letters and a bookbag on her car, when she was not there to see him do it, does not, in his view, constitute approaching or pursuing her. We are not impressed. His argument has no merit.

The issue presented is one of statutory construction, and the rules for that are well defined. Our predominant goal is to ascertain and effectuate the legislative intent. We look first to the words of the statute, assigning them their ordinary meaning, but reading them in the context of the statutory scheme. See Cain v. State, 386 Md. 320, 327-28 , 872 A.2d 681, 685 (2005).

Section 124 did not define stalking as the approaching or pursuing of another person. It did not say that stalking “means” the approaching or pursuing of another with the ³⁹³ stated intent. Rather, it defined the crime as a malicious course of conduct that includes approaching or pursuing another person with the requisite intent. Article 1, § 30 of the Code deals directly and specifically with the meaning of “includes,” when used in a statute.

It states that “[t]he words ‘includes’ or ‘including’ mean, unless the context requires otherwise, includes or including by way of illustration and not by way of limitation.” (Emphasis added). Citing that statute, the Maryland Style Manual for Statutory Law prepared by the Department of Legislative Services, an arm of the General Assembly, as “the style manual for drafting statutory law in Maryland,” to “be followed in preparing any legislation for the General Assembly,” directs legislative drafters to “[u]se ‘means’ if the definition is intended to be exhaustive” (“ ‘Department’ means the Department of Agriculture”) and to “[u]se ‘includes’ if the definition is intended to be partial or illustrative” (“