Reese v. State

Orth, C. J., delivered the opinion of the Court. I On 2 February 1972, before a commissioner for the 7th District of the District Court of Maryland, Roland C. Beadenkopf swore to and subscribed an application for an “Arrest Warrant/Summons” to be issued against MICHAEL DOUGLAS REESE. Maryland District Rule 706. 1 The “concise statement of facts showing probable cause that defendant committed a criminal offense”, called for in the application, was that Reese “on or about Feb. 2, 1972 at Vernon’s Delly, Crain Hwy * * * acted ⁷⁶ in an abusive manner with profanity in the presence of my wife.” The “formal charge” designated was “Violation of Code, Art. 27, Sec. 123.” On the basis of the application the commissioner issued a summons the same date commanding Reese to appear for trial at a place and date specified to answer charges lodged against him by Beadenkopf. 2 The summons set out as a “Concise statement of essential facts constituting the offense charged”: “The sworn application for summons claims that on February 2, 1972 at Vernons Crain Hwy. Glen Burnie Md. you did act in a disorderly manner to the disturbance of the public peace.” It continued: “You are formally charged with violation of Code, Art. 27, Sec. 123.” 3 According to the entries on the docket of the District Court, case no. 31385, Reese was tried in that Court on the summons as the charging document 4 on 9 March 1972 upon a plea of not guilty.

See Code, Art. 26, § 145 (b) (5) (ii) ; M.D.R. 720. He was found guilty and fined $100 and costs. 5 He noted an appeal on 4 April 1972, Code, Art. 26, §. 156 (d). ⁷⁷ On 12 May 1972 the case came on for trial in the Circuit Court for Anne Arundel County. Code, Art. 26, § 156 (a). The case was tried de novo.

Idem. Reese pleaded not guilty, and waived trial by jury. Motion for judgment of acquittal was made at the close of all the evidence and denied. The case was continued until 15 May at which time counsel were heard.

The court offered to place Reese on probation without finding a verdict, but Reese refused to consent. Code, Art. 27, § 641; Sanders v. State, 8 Md. App. 17, 19 . Thereupon, the court rendered a verdict of guilty. It imposed a fine of $10 and ordered Reese to pay costs.

Reese moved for a new trial which, upon hearing, was denied. On 28 June 1972, upon petition of Reese timely filed, we required the case to be certified to us for review and determination. Code, Art. 5, § 21; Rule 1010; Rule 1011 b. II At the trial in the Circuit Court for Anne Arundel County the evidence adduced by the State concerning the events leading to the charge against Reese did not vary materially from that adduced by the defense.

It appeared that there were two phases to the incident. The first phase consisted of the events which occurred on 2 February 1972 about 8:30 p.m. in Vernon’s Carry Out store on the Crain Highway in Anne Arundel County. The second phase consisted of the events which occurred shortly thereafter on what was apparently a parking lot immediately outside the store. Beadenkopf, a Baltimore County auxiliary policeman in civilian clothes, his wife, Carol Lee, and Reese were among ten or twelve people clustered around the counter in the store ordering food.

One of Reese’s companions suggested that they play the pinball machines in the liquor store next door. In a conversational tone, but loud enough for Beadenkopf about five feet away to overhear, Reese said he “did not want to play the fucking pinballs, they beat us for too much money in the last few weeks.” Beadenkopf objected to ⁷⁸ the language and “asked the man to watch his mouth.” Reese, according to Beadenkopf, still addressing his friends, said: “Oh, I got to watch my mouth. Whose got the keys to the car? I left my mouth in the glove compartment.” Reese left the store.

Beadenkopf followed him to talk to him about using such language in front of Mrs. Beadenkopf. Beadenkopf testified: “Well I tried to talk to Mr. Reese about the language in front of my wife and his friends came out and circled me and started jumping in my face, ‘What did I know about the law,’ and so forth * * *.” They told Beadenkopf to call the police and Beadenkopf did so. The State attempted to elicit the specifics of what happened outside the store, asking “exactly what did Mr. Reese do?” Beadenkopf replied: “Just carried on, sir. That’s all.” He was asked what he meant by carrying on and to describe Reese’s activities.

He said: “Well when the police arrived on the scene and asked for some identification he snagged the driver’s license out of the officer’s hand and refused to give him identification at first. Then again after more officers arrived on the scene he give identification. He still was carrying on and they placed him under arrest, and I didn’t see the man no more until I went to court.” Beadenkopf never explained in more detail exactly what he meant by “carrying on”, although he was asked to do so. Reese gave his version of “snagging” the license from the police officer’s hand: “When the police officers came and I gave the — my identification to Officer Call and he passed it to an Officer Booth of the Anne Arundel County Police, and Officer Booth passed it to Mr. Beadenkopf.

I didn’t see where as Mr. Beadenkopf should have my wallet with the identification, whereas I could see that a police officer would have this right. So I took my wallet from Mr. Beadenkopf. Both police officers ⁷⁹ had ray full name and address and any pertinent information that they could get from my identification cards.” Beadenkopf was asked how the language and actions of Reese affected him, his “physical feelings and emotions.” He replied: “Sir, I was really surprised, a full grown man using this type of language in front of women, plus in a place of business.” Asked if he had “any other emotions besides surprise”, Beadenkopf said: “Just a loss of respect, that’s all, and like I say, being a man I thought that something should have been said to him. That’s about all.” He made his feelings clearer on cross-examination : “To me, I was being made a fool of because I opened my mouth by asking him to watch his.” In the direct examination of Beadenkopf, he told why he pressed charges: “Well at the present time, when the officers was talking to him, his friends, they were going to get warrants out for me and so forth for disorderly conduct.

So in turn to protect myself I went and got an — got a warrant for disorderly conduct to press charges against the man for the language he was using and the way he acted.” It appears clear from the evidence before us, although none of the police officers involved were called to testify, that Reese had not actually been “arrested.” He was accosted and frisked, but Beadenkopf assured the police that he was going to swear out a warrant, and Reese was permitted to leave the scene. Ill Code, Art. 27, § 123, as in effect at the time the incident here occurred, consisted of five subsections. Subsections (a), (b) and (e) concerned intoxication and intoxicating beverages. As there was no indication that intoxication or intoxicating beverages were in any way involved in the instant case, the evidence was patently in ⁸⁰ sufficient in law to sustain a conviction of the offenses proscribed by those paragraphs.

Subsection (c) provided, in relevant part: “No person shall act in a disorderly manner to the disturbance of the public peace, upon any public street, highway, * * * or parking lot, * * * in any * * * county in this State, * * * or in any store during business hours * * Subsection (d) set out the penalties for violating the prohibitions of the section. 6 We had occasion to discuss § 123 (c) in Matter of Nawrocki, 15 Md. App. 252 , in the light of Drews v. State, 224 Md. 186 . We found that the gist of the crime under the statute, as it was in the cases of common law predecessor crimes, is the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area. In other words, it is conduct of such a nature as to affect the peace and quiet of persons actually present who may witness the conduct or hear the language and who may be disturbed or provoked to resentment thereby. Nevertheless, the statute, in either its “doing” or “saying” proscriptions, may not punish acts or spoken words, although vulgar and offensive, which are protected by the first and fourteenth amendments.

Gooding v. Wilson, 405 U. S. 518 ; Terminiello v. Chicago, 337 U. S. 1 . Implicit in § 123 is the prohibition against a person wilfully acting in a disorderly manner by making loud and unseemly noises or by profanely cursing, swearing or using obscene language. The State has the power to punish obscene expression, but to be obscene such expression must be, in some significant way, erotic, so as to conjure up such psychic stimulation in anyone likely to be confronted with it. Cohen v. California, 403 U. S. 15 .

And the State is free to ban the simple use, “without a demon ⁸¹ stration of additional justifying circumstances, of so-called ‘fighting words’, those personally abusive epithets which, when addressed to an ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” Chaplinsky v. New Hampshire, 315 U. S. 568 . Thus the obscene language prohibited means obscene in the constitutional sense and the profanely cursing or swearing prohibited means “fighting words.” Whether the loud and unseemly noises prohibitions are within the ambit of protected expression depends on the nature and content of them, a question to be determined on the facts of the particular case. See Matter of Nawrocki, supra, 257-261. IV With respect to the incident in its first phase as it occurred in the store, there was no evidence sufficient in law to bring Reese under the “doing” prong of Code, Art. 27, § 123 (c).

It was not shown that he made loud or unseemly noises or performed any other physical acts to the disturbance of the public peace. If he is to be found to have violated the prohibitions of the statute, it must be under its “saying” prong. Under that prong Reese’s utterance of the word “fucking” is relevant. As a constitutional right is involved, we must