Von Lusch v. State

²⁷³ Melvin, J., delivered the opinion of the Court. Lowe, J., dissents and filed a dissenting opinion at page 290 infra. On September 23, 1974, the appellant, Richard von Lusch, was found guilty by a jury in the Circuit Court for Caroline County (Judge B. Hackett Turner, Jr. presiding) of four violations of § 555A of Article 27 of the Annotated Code of Maryland (1976 Repl. Vol.).

That section, in pertinent part, makes it “unlawful for any person to make use of telephone facilities or equipment * * * for repeated calls, if with intent to annoy, abuse, torment, harass, or embarrass one or more persons” and provides that a violator is guilty of a misdemeanor and subject to a fine of not more than $500 or imprisonment for not more than 3 years, or both in the discretion of the court. The charges against appellant originated in the Maryland District Court in Queen Anne’s County as a result of separate complaints filed by Julius Grollman and Eugene E. Grannan. Upon appellant’s requests for jury trial the cases were transferred to the Circuit Court for Queen Anne’s County. The cases were then, at appellant’s request, removed to the Circuit Court for Caroline County where they were consolidated for trial.

The charging document in each case contained two counts. The first count in each charging document charged that appellant violated the above-quoted portion of § 555A on Sunday, May 5, 1974 and the second count in each charging document alleged a similar violation on Saturday, May 11,1974. After a motion for a new trial was denied on December 5, 1974, appellant was sentenced on January 29, 1975 to the Centreville jail for 3 months on each count in each case; the sentences were suspended and appellant placed on probation for 3 years. He also received a fine of $500 on each count in each case.

In his brief, filed in proper person, 1 appellant presents 8 questions on this appeal: ²⁷⁴ “1. Can a resident who is aggrieved and injured by the illegal acts of another be arrested and convicted for demanding the laws be enforced as written? 2. Has an elected official and others in public office the right to enter into a conspiracy to circumvent the law by creating new laws to cover up violations of the law which deny Constitution and Civil Rights? 3. What is the justification of wiretaps without a court order and the admission of that evidence in violation of 10-401,10-402, 10-403, and 10-406 of the Annotated Code of Maryland and the Federal Constitutional laws which forbid these actions? 4.

Are the courts to be allowed to suppress evidence that can prove a citizen innocent? 5. Are the right to confront a witness and cross examine to be denied in any court in this country? 6. Under what rules have the courts the right to deny the right to counsel in violation of the 6th and 14th Amendments? 7. Has not the accused the right to be present at a hearing for a new trial if he so desires? 8.

Have the public officials the right to aid in the maintenance of a hazard to the lives and health of the residents of a community when that enterprise has clearly established itself as a danger to the community and a nuisance?” We shall consider questions 1, 2 and 8 under the heading sufficiency of the evidence, for, as we understand appellant’s arguments on these questions, he contends that, as a matter of law, the evidence shows his lack of intent, in making the telephone calls, to “annoy, abuse, torment, harass, or embarrass”, and therefore his motion for “directed verdict” 2 at the close of all the evidence should have been granted. ²⁷⁵ Preliminarily, we note that the record before us in this case reveals that it is yet another chapter in the running battle appellant has waged for a number of years against the existence of the Bay Bridge Airport. 3 The airport is located just south of Maryland Route 50/301 in Queen Anne’s County near the eastern end of the Chesapeake Bay Bridge. Appellant lives just north of Route 50/301 in a large house in which he operates an antique business. He testified that his property is 1,000 ft. from the airport runway. To say that he is not happy with the location of the airport is certainly an understatement.

This unhappiness is perhaps equalled in degree only by his unhappiness with the government officials of Queen Anne’s County for permitting it to exist and with the operators of the airport for the manner in which it is operated. I Sufficiency of the Evidence Appellant does not dispute the testimony of prosecution witnesses that on May 5, 1974, and May 11, 1974, he did in fact make repeated calls to both Mr. Grollman and the Bay Bridge Airport. Mr. Grannon is the president of the company that operates the airport. Mr. Grollman, who operated a general merchandise store from his home and who at that time was one of three County Commissioners of Queen Anne’s County, testified that on Sunday, May 5,1974, he received 40 telephone calls from the appellant, and that on May 11,1974, he received 14 calls from him between 8:50 A. M. and 9:15 A. M. Testimony of personnel at the airport was that on May 5,1974, appellant made as many as 14 calls to the airport, most of which were within short periods of ²⁷⁶ time in the morning, and that on May 11, 1974, appellant made as many as 12 calls, again mostly within short periods of time in the morning.

There was ample evidence from which the jury could have found that the calls were “repeated” within the meaning of the statute. As we have indicated, appellant does not dispute the sufficiency of the evidence in that regard. Appellant does, however, vigorously challenge the sufficiency of the evidence concerning whether or not the calls were made “with intent to annoy, abuse, torment, harass or embarrass”. As we understand his contention here, it is essentially that he had a right to make the repeated calls because the airport, in his opinion, was operating illegally and he was only attempting to right what he perceived to be a wrong — not to annoy, harrass, etc. anyone.

He testified that his calls to Mr. Grollman on May 5, 1974, were to “ask that he [Grollman] enforce the zoning regulations as I have many times, which would take the planes away from my property”, but that “ever [sic] time I attempt to call Mr. Grollman he recognizes my voice and he hangs up”, and that he was unable to “get a sentence or message to him”. He said “I actually did dial Mr. Grollman’s number, according to my records, forty-one (41) times” on May 5, 1974. “Mr. Grollman never answers the phone as a rule, or he will hang up on me if he does and if I ask a question, he just does not answer! He has never given me a direct answer yet!” Each time he called him, an airplane was close to his building. “Grollman listened when I asked him some questions about when he was going to enforce the zoning ordinances, but he did not answer”. Mr. Grollman’s version of the circumstances was quite different.

He testified that his telephone number for his home is the same as that for his store; that on Sunday, May 5, 1974, the store was not open for business; that on that date, as well as May 11, 1974, when his store was open for business, appellant “would complain about the airplanes flying over his business, which they were trespassing on him; and . . . why I didn’t protect his rights or enforce the law of airplanes flying over his place of business”, and that ²⁷⁷ appellant’s complaints were made in a loud and arrogant tone. “Q. Now was he asking questions or were these just statements? A. Well if he did ask a question a ... I didn’t get time to answer it because he always hung up on me. If there were any questions to answer.

Q. Do you mear he would just say what ever he was going to say and hang up? A. Yes sir. Q. And you never had any time to reply to anything, is that right sir? A. Very few occasions on the phone calls.” Mr. Grollman testified that at other times on the dates in question, “because I had customers to wait on, and I would answer the. phone, recognize the voice and just hang up and go on and wait on the customers”. “Q. And this voice you recognized as Richard von Lusch?

A. Yes sir. And on numerous occasions he identified himself anyway, or was saying the airplanes were flying over his place of business.” When asked what effect “these repeated calls” had on him and his business, Mr. Grollman said: “Well it has hindered my business, if I would have four or five customers in there, being myself, and if I couldn’t take care of them, of the customers by answering the phone, running back and forth to the phone, a.. . . someone occasionally would walk out and a... I wouldn’t have a chance to wait on them.” Mr. Grollman further testified that although the Board of County Commissioners had a duty to enforce the county zoning laws, he told appellant he “had no jurisdiction over ²⁷⁸ airplanes flying in the sky”; and that appellant never made an appointment with him in his “official capacity as a County Commissioner and came before the Commission”. It is of course true that any person holding elective office should expect telephone complaints, even repeated complaints, from his constituents concerning a variety of matters.

Moreover, the fact that the public official might consider such calls annoying, abusive, tormenting, harassing, or embarrassing, or even that the calls may in fact have one or more of those characteristics, does not alone subject the caller to punishment under the statute invoked here. On the other hand, if such calls are made with the requisite intent “to annoy, abuse, etc.”, the fact that the recipient of the calls is a public official does not immunize the caller from the statute’s sanctions. It is but a factor to be considered by the trier of fact in considering whether the element of intent has been established. Testimony of airport personnel revealed that the repeated calls received from appellant followed the same general pattern as those he made to Mr. Grollman.

He complained of airplanes flying too close to his house. “He [appellant] says what he has to say and then he hangs up. You have no time to answer him, and no time to ask anything”. “Generally in the morning he is calm and, you know, reasonable, after about the third or fourth call he is screaming and yelling and you can’t make any sense out of it anyway”. On both May 5th and May 11th he said to the recipients of the calls, “I will tie your phone up all day if I have too[sic]”, or that he “was going to tie the phone up all day”. Mr. Grannon testified that the airport had no “direction and control” over the airplane pilots’ observance of flight patterns to and from the airport, but that “we have a chart on the wall showing the take-off and landings and we have a drawing of Mr. von Lusch's house asking all aircraft to avoid that area”.

Mr. Har, the airport manager, testified that he took no action in response to appellant’s calls on either May 5th or May 11th, “ ... because very simply .. . because I could be sitting right there at the desk and every time that, phone would ring about an airplane you could look and see what that airplane ²⁷⁹ was doing. Now on no occasion were those airplanes near that man’s house”. This Court, in Waller v. State, 13 Md. App. 615, 618 , speaking through Judge Powers, reviewed the phrase “with intent” as applied to the field of criminal law: “Many common law and statutory crimes in Maryland are defined as the doing of a certain act with intent to do a certain other act. This element of intent, so common in our criminal law, is seldom proved directly, but is more often found by drawing inferences from facts proved which reasonably indicate under all the circumstances the existence of the required intent.

In Yopps v. State, 234 Md. 216 , 198 A. 2d 264 , the Court of Appeals said, at pages 220-221: ‘Finding the requisite intent to steal is, of course, never a precise process for intent is subjective, and it must therefore be inferred from the circumstances of the case if it is found at all.’ See also Putinski v. State, 223 Md. 1 , 161 A. 2d 117 . This Court has several times had occasion to point out that intent is usually determined by inference, rather than by direct proof. In Wiggins v. State, 8 Md. App. 598 , 261 A. 2d 503 , we said at page 609: ‘In short, the finding of the requisite intent was a matter for the trier of fact. See Szewczyk v. State, 7 Md. App. 597 , 601 ____’ ” In reviewing the sufficiency of the evidence in a jury trial, we do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt.

Rather it is our limited function to determine whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a ²⁸⁰ reasonable doubt, of the defendant’s guilt of the offense charged. State v. Devers, 260 Md. 360 (1971); Spease v. State, 21 Md. App. 269 (1974); Vuitch v. State, 10 Md. App. 389 (1971). Applying this test to the record before us, we cannot say that there was no legally sufficient evidence from which the jury could have found the appellant guilty of the charges against him. See Pressley v. State, 244 Md. 664 (1966).

II A lleged Violation of Wiretap Laws Appellant contends that his civil rights were violated when the trial court admitted evidence obtained as a result of the attachment to his telephone line of a “pen register”. A pen register is a device which, when attached to the telephone line of a particular telephone, records on tape all telephone numbers dialed from that telephone. The attachment is made at the telephone company plant, not at the premises where the telephone from which calls originate is located. The device does not record conversations; nor does it indicate whether or not the call was completed.

It records only that a particular telephone number was dialed. Pursuant to complaints received from Mr. Grollman and the Bay Bridge Airport concerning appellant’s repeated calls, the telephone company placed a pen register on appellant’s telephone line on April 30, 1974. It remained on the line until May 6, 1974. A representative from the telephone company testified that on May 5, 1974, forty-three (43) calls were made from appellant’s telephone number to Mr. Grollman’s telephone number, and twelve (12) calls were made from appellant’s number to the airport telephone number.

The only objection appellant made to this testimony was based on the chain of custody of the information recorded on the tapes. That issue is not raised or argued on this appeal. The issue of whether or not use of the pen register was a violation of appellant’s civil rights was not raised or decided below. We therefore do not consider it.

Md. Rule 1085. We observe, however, that had ²⁸¹ the issue been properly preserved for our review, and even if we were to decide (which we find it unnecessary to do) that the evidence was improperly admitted, we would further hold that it was harmless beyond a reasonable doubt, for the evidence obtained from the pen register was the same evidence freely admitted by the appellant himself, i.e., the number and frequency of the telephone calls. Ill Other Rulings on, the Evidence by Trial Court (a) In his argument with respect to questions 4 and 5 presented in his brief, appellant contends he “was consistently denied the right to introduce evidence during trial thru cross examination of the various witnesses and thru the submission of documents and photos which would have upheld my claim of violation of my Constitutional and Civil Rights” and “was denied the right to obtain evidence as to the real reasons for the phone calls from Julius Grollman, 21 times”. “The Transcript will show more than 50 places where information was denied to me”. Nowhere in his brief does the appellant refer us to any particular portion of the record or transcript giving factual support for these contentions or that they were properly preserved for appellate review.

Md. Rule 1031 c 4 requires that appellant’s brief contain “A clear concise statement of the facts material to a determination of the questions presented” and that “Reference shall be made to the pages of the record or the transcript of the testimony as contained in the record supporting his assertions”. In Van Meter v. State, 30 Md. App. 406 (1976) Judge Lowe said for this Court: “The Court of Appeals has held that issues can be waived for failure to comply with the procedural requirements to preserve the right of appellate review. Harmon v. State Roads Comm., 242 Md. 24, 29-32 ; Hyde v. State, 228 Md. 209, 218 ; see also ²⁸² Comptroller v. Aerial Products, 210 Md. 627, 644-645 . ‘Surely it is not incumbent upon this Court, merely because a point is mentioned as being objectionable at some point in a party’s brief, to scan the entire record and ascertain if there be any ground, or grounds, to sustain the objectionable feature suggested.’ State Roads Comm. v. Halle, 228 Md. 24, 32 . . . We cannot be expected to delve through the record to unearth factual support favorable to appellant and then seek out law to sustain his position.

Cf. Clarke v. State, 238 Md. 11 .” Under the circumstances, we hold that appellant has waived the issues raised by these contentions. (b) Appellant does refer to “page 21 of the transcript” in support of his argument that the trial court violated the “Voucher Rule” during the defense cross-examination of Mr. Grollman, and, argues appellant, his right of cross-examination was thereby prejudicially affected. Appellant’s counsel had asked the witness if he had ever taken any action with regard to appellant’s request that the witness enforce the Zoning Ordinance.

The court sustained an objection to the question and said: “Well this is an administrative officer in the county government. He is not the State’s Attorney or a police officer. He has no authority to, as I understand it, to enforce criminal law.” As we view these remarks, the judge was merely explaining his ruling. He was in no sense “vouching for” the character or integrity of the witness.

The contention is without merit. (c) During the State’s cross-examination of appellant he was ²⁸³ questioned concerning his past criminal record. The transcript reveals the nature of the inquiry: “Q. On April 25th of 1931 were you a . . .. MR.

VON LUSCH: Mr. Clark, if you are going to bring a juvenile record into this court, I am going to object strenuously! THE COURT: Now just one minute Mr. von Lusch! The question hasn’t been asked! This court will pass on it.

MR. VON LUSCH: Well he is leading up to it sir! THE COURT: Yes sir.