Standiford v. Standiford

HARRELL, Judge. Appellee, Mary Lee Standiford, brought a civil action against her ex-husband, appellant, James A. Standiford, for invasion of privacy and violation of Md.Cts. & Jud.Proc. Code Ann. § 10-401 et seq., Maryland’s Wiretapping and Electronic Surveillance Act. A jury trial was held in the Circuit Court for Anne Arundel County (Goudy, J. presiding), and judgment was entered for appellee in the amount of $12,500 in actual damages, $25,000 in punitive damages, and $9,500 in attorney’s fees.

Appellant filed a Motion for New Trial which was denied on 29 October 1990. This appeal followed. Appellant raises the following issues: I. Whether the trial court erred in refusing to grant judgment for appellant on Count I of appellee’s Complaint which alleged a violation of Maryland’s Wiretapping and Electronic Surveillance Act; II. Whether the trial court erred in allowing the jury to consider the attorney’s fees incurred by appellee; III.

Whether there was sufficient basis for the jury’s award of actual damages; IV. Whether there was sufficient basis for the jury’s award of punitive damages; ³³¹ V. Whether the trial court erred in allowing the jury to take into the jury room a tape player and the tapes of the recorded telephone conversations that had been received in evidence; and, VI. Whether the trial court erred in denying appellant’s Motion for Mistrial. Facts The parties were married on 7 November 1964.

Two children, Dawn and Jamie, were born to the parties thereafter. The couple began having marital difficulties in February 1984. They were eventually divorced in 1987. Prior to their divorce, the parties resided at 216 Twelfth Street in Pasadena, Maryland.

The parties stipulated that during their marriage appellant was the sole subscriber for the telephone service in the marital home and that at all times pertinent to this matter appellant was acting alone. Appellee alleged that from February 1984 through January 1987 appellant listened to and recorded her telephone conversations that occurred in the marital home. Appellee testified that she never gave permission for appellant to place any listening devices on the telephone lines. Appellee first learned that telephone conversations in the house were being intercepted when she and her daughter Dawn were in the basement watching television.

They heard voices coming from somewhere other than the television. They followed the voices until they eventually found a handset hidden on a crate, under a coat. The handset was hooked into the telephone lines making it possible to hear telephone conversations. Appellee confronted appellant, an Anne Arundel County police officer, about the handset and he laughed at her and said “he had his reasons.” On 6 September 1985 appellee, her daughter Dawn, and Dawn’s boyfriend Michael Frazier, found a tape recorder, an orange handset, and a timer hidden in the laundry room.

This equipment was set up on a freezer under the steps, out ³³² of sight, and in a dark place. Appellee confronted appellant and, again, he laughed and said he had his reasons. On 28 September 1985, appellee found a series of cassette tapes in appellant’s police vehicle. One of the tapes was marked “9/8” and “don’t tell.” Another of the tapes was marked “after tap, Betty, 9/19/85.” Several days later, on 3 October 1985, appellee found hidden in the loft of the garage another set of recording devices consisting of a black handset and a Panasonic recorder.

At some point in October 1985 appellee also found a cassette recorder, an orange handset, and another timer in the loft. Appellee testified that she listened to the cassette found in the cassette recorder. It contained some telephone conversations she had had with her Aunt. Appellee confronted appellant again.

At the time of this confrontation the parties were estranged. Appellant told appellee that he wanted her to sign certain separation papers, which appellee did not want to sign. Appellant then threatened that if appellee would not sign the papers, he would tell the husband of the Aunt about a conversation appellee had with her Aunt concerning an adulterous relationship that her Aunt had engaged in during her marriage. Appellant told appellee that he would ruin the Aunt with this information.

Appellee informed her Aunt about the tape recording and ultimately decided not to sign the separation papers. As a result of the threats made by appellant to reveal her infidelity, appellee’s Aunt confessed to her husband. Thereafter, appellee’s Aunt was divorced from her husband. Appellee felt responsible for her Aunt’s divorce and she became distressed over these events.

On 6 November 1985, and again on 10 November 1985, appellee found a handset and a recording device in a freezer in the home. Appellee did not remove the device she found on 10 November, but rather, on 12 November 1985, she called the police. On 4 November 1986 the parties separated. Appellee testified that on 4 January 1987 she found a voice activated recording device, an orange headset, and a tape in a loft in the home.

She took this equipment to her ³³³ sister’s home. Later, appellant confronted appellee and demanded that she return the recording equipment. Discussion I. At trial appellant filed a motion to dismiss the count of the Complaint alleging violation of Maryland’s Wiretapping and Electronic Surveillance Act, supra, (“the Act”), which the court denied. On appeal, appellant contends that the trial court erred in denying his motion to dismiss.

He contends that he is exempted from the civil sanctions provided because the Act was not intended to apply to spousal wiretaps where the spouse intercepting the conversations acts alone to install and utilize the wiretap and is the sole subscriber for the telephone service in the commonly occupied marital abode. In support of this position appellant offers extensive citations to federal and other state decisions. We disagree with him and these authorities, to the extent not distinguished herein, and explain. Section 10-402 of the Act provides in part: (a) Unlawful acts. — Except as otherwise specifically provided in this subtitle it is unlawful for any person to: (1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; One of the clear purposes of the Act is to prevent, in noncriminal situations, the unauthorized interception of conversations where one of the parties has a reasonable expectation of privacy.

Benford v. A.B.C., 554 F.Supp. 145 (D.Md.1982). The Act is an offspring of, and closely parallels, Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 1 . Mustafa v. ³³⁴ State, 323 Md. 65, 69 , 591 A.2d 481 (1991); Smith v. State, 283 Md. 156 , 389 A.2d 858 (1978), aff'd, 442 U.S. 735 , 99 S.Ct. 2577 , 61 L.Ed.2d 220 (1979); Adams v. State, 289 Md. 221 , 424 A.2d 344 (1981). Consequently, Maryland courts often turn to the federal courts for guidance in construing the Maryland Act.

See generally Baldwin v. State, 45 Md.App. 378 , 413 A.2d 246 (1980), aff'd 289 Md. 635 , 426 A.2d 916 , cert. denied, 454 U.S. 852 , 102 S.Ct. 295 , 70 L.Ed.2d 144 (1981); Wood v. State, 290 Md. 579 , 431 A.2d 93 (1981); Petric v. State, 66 Md.App. 470 , 504 A.2d 1168 , cert. denied, 479 U.S. 860 , 107 S.Ct. 206 , 93 L.Ed.2d 136 (1986). While the Maryland Act is modeled upon the federal act, and extensively tracks its provisions, the General Assembly has made some of the provisions of the Act more restrictive than the federal law. Mustafa v. State, 323 Md. 65, 69 , 591 A.2d 481 (1991); Petrie v. State, 66 Md.App. 470 , 504 A.2d 1168 , cert. denied, 479 U.S. 860 , 107 S.Ct. 206 , 93 L.Ed.2d 136 (1986). For example, 18 U.S.C. § 2511 (2)(c) permits an interception when one of the parties to the communication has given prior consent while the Maryland Act requires the prior consent of all the parties to a communication.

State v. McGhee, 52 Md.App. 238 , 447 A.2d 888 (1982). The alterations that were made by the General Assembly before enacting the Maryland Act were obviously designed to afford the people of this State a greater protection than Congress provided in Title III. Baldwin v. State, 45 Md. App. 378 , 413 A.2d 246 (1980), aff'd 289 Md. 635 , 426 A.2d 916 , cert. denied, 454 U.S. 852 , 102 S.Ct. 295 , 70 L.Ed.2d 144 (1981). We recognize, however, that in construing the ³³⁵ Maryland Act we must ensure that its interpretation does not fall below federal guidelines.

Mustafa v. State, 323 Md. 65, 69 , 591 A.2d 481 (1991); State v. Bailey, 289 Md. 143 , 422 A.2d 1021 (1980). The issue before us has not been addressed previously by appellate courts in this State. Nevertheless, we are of the opinion that the case sub judiee involves nothing more nor less than statutory construction. The fundamental task, in such a case, is to discern the objective, goal or purpose of the legislation.

In our ‘efforts to discover the purpose, aim, or policy we look at the words of the statute ... because what the legislature has written in an effort to achieve a goal is a natural ingredient of analysis to determine that goal.’ We also may consider ‘other material that fairly bears on the fundamental issue of legislative purpose or goal’ so that we may read the language of the legislation in the context within which it was written. City of College Park v. Cotter, 309 Md. 573, 587-88 , 525 A.2d 1059 (1987), quoting Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505 , 525 A.2d 628 (1987). In the case before us, we find that the statutory language is clear and, therefore, it is unnecessary to examine the legislative history for interpretation. The Maryland statute clearly and unambiguously prohibits all willful interceptions and endeavors to intercept any wire, oral or electronic communication.

There is no explicit exception regarding the interception of a spouse’s communication. Appellant relies primarily on Simpson v. Simpson, 490 F.2d 803 (5th Cir.1974), for the proposition that the Act includes an implied exception for spouses who intercept the conversations of the other spouse. In Simpson , the husband intercepted conversations between his wife and another man. The wife brought a civil action against the husband alleging violation of Title III.

The Fifth Circuit Court of Appeals examined the language and the legislative history of Title III and concluded that Congress did not intend to ³³⁶ extend the statute to cases involving persons aggrieved by the personal acts of their spouses since issues of the marital home and domestic conflict are normally left to the states. The Court specifically limited its holding to the facts of the case. The Fourth Circuit has not followed the line of reasoning set forth in Simpson . In Pritchard v. Pritchard, 732 F.2d 372 (4th Cir.1984), a husband alleged that his wife intercepted telephone conversations by attaching a wiretapping device to the family phone.

Relying on United States v. Jones, 542 F.2d 661 (6th Cir.1976) and Kratz v. Kratz, 477 F.Supp. 463 (E.D.Pa.1979), the husband argued that Title III prohibited all wiretapping activities other than those expressly authorized. The Pritchard Court stated: In light of the clarity and lack of ambiguity of the statutory language, an analysis of the legislative history would not appear to be necessary. The Simpson court and other courts faced with the issue have, however, examined the legislative history in an effort to determine the intent of Congress on the issue of wiretapping between spouses. In Simpson the court concluded that its search of legislative materials had been ‘long, exhaustive, and inconclusive/ yielding ‘no direct indications’ that Congress intended for the statute to reach interspousal wiretaps conducted in the marital home although the court had found ‘several scattered suggestions that [Congress] was aware that the statute’s inclusive language might reach this case.’ In Jones and Kratz , however, an analysis of the legislative history led to the conclusion that the legislative history ‘evince[d] a congressional awareness of the widespread use of electronic eavesdropping in domestic relations cases, and a congressional intent to prohibit such eavesdropping.’ Specific references that are persuasive include the testimony before the Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee of Professor Robert Blakey.

Blakey, who is recognized as the author of Title III, commented that ‘private bugging in this country can be divided into ³³⁷ two broad categories, commercial espionage and marital litigation.’ The Kratz court found further indication of congressional intent in comments made during the Hearings on Invasion of Privacy Before the Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee. Senator Long, the chairman of the subcommittee, ‘noted that the three major areas in which private electronic surveillance was widespread were “(1) industrial (2) divorce cases, and (3) politics.” ’ Another explicit acknowledgement of the scope of the statute is found in the comments of Senator Hruska, joined in by Senators Dirksen, Scott and Thurmond that ‘[a] broad prohibition is imposed on private use of electronic surveillance, particularly in domestic relations and industrial espionage situations.’ Pritchard, 732 F.2d at 373-74 (citations omitted). The Court did not find any express exception for unconsented electronic surveillance between spouses, and it did not find any indication that Congress intended to imply such an exception. The Pritchard Court concluded, therefore, that Title III prohibits all wiretapping activities unless specifically excepted.

An examination of the Maryland Act convinces us that the statutory language is equally clear; consequently, it is not necessary for us to examine the legislative history. Had the General Assembly intended an exception for the interception of communications of spouses, it would have specifically provided one, as it did with respect to the use of extension telephones. See generally, Md.Cts. & Jud.Proc. Code Arm. § 10-401.

Since there is no express exception for nonconsensual electronic surveillance between spouses, nor any indication that the General Assembly intended to imply such an exception, we hold that there is no exception for the interception of communications of spouses and we affirm the trial court’s denial of appellant’s motion to dismiss. ³³⁸ II. Appellant next contends that the trial court erred in allowing the jury to consider the issue of appellee’s attorneys’ fees. Section 10-410(a)(3) of the Act creates an entitlement in a successful plaintiff bringing a civil action under the Act to “a reasonable attorney’s fee and other litigation costs reasonably incurred.” This issue is not preserved for our review. Pursuant to Maryland Rule 2-517, “[a]n objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent.

Otherwise, the objection is waived.” In the case sub judice, appellant failed to object when the bill for the appellee’s attorney’s fees was offered in evidence. Appellant also failed to object to the trial court’s jury instruction which advised the jury that if it found for Mrs. Standiford it could assess reasonable attorney’s fees. Maryland Rule 2-520(e) provides that: No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury.

Since appellant failed to object to the instruction given, the issue of attorney’s fees is not preserved for appellate review.

III

Following the trial, appellant filed a motion for new trial in which he argued that there was no legally sufficient evidence that any of his actions were the proximate cause of the injuries sustained by the appellee or that he violated the Maryland Act. The trial court denied this motion. On appeal, appellant suggests that appellee’s injuries were not the result of his actions, but rather, the demise of the ³³⁹ parties’ marriage or various other problems. Therefore, his Motion for New Trial should have been granted.

Even if appellee’s damages were a result of the wiretapping, appellant contends that appellee was entitled only to liquidated damages of $1,000 or, at best, $100 for sixty-five days, pursuant to § 10-410(a) of the Act which provides: (a) Civil liability. — Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this subtitle shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use the communications, and be entitled to recover from any person: (1) Actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher; (2) Punitive damages; and (3) A reasonable attorney’s fee and other litigation costs reasonably incurred. We disagree and explain. That a trial court may grant a new trial to any party upon a timely motion and proper grounds is beyond dispute. Md. Rule 2-533.

Whether to grant or deny a motion for new trial, however, is a matter addressed to the sound discretion of the trial court. I.O.A. Leasing Corp. v. Merle Thomas Corp., 260 Md. 243, 249 , 272 A.2d 1 (1971); Thodos v. Bland, 75 Md.App. 700, 706 , 542 A.2d 1307 (1988). The exercise of the discretion entrusted to the trial court will not be reviewed on appeal, at least when the trial court has fairly exercised its discretion, and except under the most extraordinary or compelling circumstances. Thodos, 75 Md. App. at 706-07 , 542 A.2d 1307 and cases cited therein.

As a preliminary matter, therefore, our task is to determine whether extraordinary or compelling circumstances exist, or substantial rights have been denied, sufficient to justify our review of the trial court’s denial of appellant’s motion for new trial. ³⁴⁰ In granting a new trial, [the Court] does not assume that the verdict is, but that it may be, wrong. It says to the parties, we are strongly apprehensive that the result is not in accordance with the evidence. We think it expedient to submit the case to another jury, and leave it to them to say whether or not our fears are well-founded---- It is settled, then, that the court which tried the cause, may, in a proper case, of which it shall be the judge, set aside the verdict and grant a new trial, under circumstances which at first blush would seem to trench upon the rights of the jury. It can look through the evidence upon which the jury have [sic] passed, and then consider the verdict.

It can compare them, and, if the one is clearly irreconcilable with the other, can so pronounce, and order the case to be submitted to another jury. Thodos, 75 Md.App. at 708, 542 A.2d 1807 quoting Snyder v. Cearfoss, 186 Md. 360, 368-69 , 46 A.2d 607 (1946). Thus, a new trial appropriately may be granted where the verdict is against the evidence or the weight of the evidence. Thodos, 75 Md.App. at 708 , 542 A.2d 1307 .

Moreover, a motion for new trial may be granted where it can be seen, upon a consideration of the whole case, that the verdict is inequitable, insufficient, or contrary to the admissions of the parties. Id. (citations omitted). In the instant case, the jury’s verdict was not against the evidence or the weight of the evidence, and it was neither inequitable, insufficient, nor contrary to the admissions of the parties.

Dr. Marshall Belaga, a psychiatrist, testified that appellee had been his patient since 23 December 1988. Originally, Dr. Belaga diagnosed appellee as suffering from major depression; however, this diagnosis was eventually changed to adjustment disorder with depression. Dr. Belaga testified that one of the things that prompted me to change that diagnosis to adjustment disorder with depression is that the diagnosis of depression assumes a large predisposition on the patient’s part, either a genetic predisposition ³⁴¹ in terms of the family history, or other physical predispositions. In getting to know Mary Lee [appellee] better, it seemed to me that, in fact, there’s very little predisposition on her part for depression and that more of what is causing her symptoms is a reaction to the situation that she’s in as she perceives it.

Dr. Belaga further testified that much of what was bothering appellee