Hackley v. State
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In the Circu it Court for P rince Geo rge s Cou nty Case No. CT 02-0154X IN THE COURT OF APPEALS OF MARYLAND No. 18 September Term, 2005 ______________________________________ WENDELL HACKLEY v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: November 9, 2005 Petitioner, Wen dell H ackl ey, was convicted in the Circuit Court for Princ e 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 stalking requires approa ching or p ursuing th e victim and that the evide nce failed to show that he e ngage d in that c onduc t. The intermediate appellate court agreed that approaching or pursuing was an element of the off ense but af firmed 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). W e granted Hack ley 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 Appea ls misconstrued the statute and shall hold that the crime o f stalking does not require that the defen dant appro ach or pu rsue 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 te stimon ial evide nce in th is case c ame fr om the victim, Devora P., and petitioner Hackley. Some of it was in dispute. As the State obviously prevailed, we view the evidence, and all inference s fairly deducib le from the evidence , in a light most f avorable 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 ver sion testified to by Ms . P. Ms. P. had dated Hackley for an eight month period in 1991, during which she became pregnan t. Her daughter, Adriana, w as born in October, 1991. From the time they ended the relationship in 19 91, M s. P. h ad no contac t of a ny kin d with Hackl ey 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 W here is my daugh ter? M s. 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 h er in the h ead w ith the gu n. Ms. P. called for her mother, who was in th e house. W hen the m other cam e out, Hackley stopped hitting Ms. P., who, bloodied from the attack, ran into the house. The mother called 9 11. The tape of th e cal l was adm itted into evid ence and playe d 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 murder1 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 windshie ld wiper of her car. With respect to the first incident the assault Ms. P. testified 1 There was evidence that Hackley attempted to fire the gun at Ms. P., and that he began hitting her with the weapon when it did not fire. -2- that her car was parked in her drivew ay, which ph otograph ic exhibits sho wed is im mediately adjacent to her house. Ms. P. called the police. An officer responded, retrieved the letters, and ga ve 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 othe r thin gs, H ackl ey said in the le tter th at [ i]f I s ee you with another man in these next few w eeks I m shooting no questions asked and that s a promise I will not break. I m trying to warn you before I se riously hurt you, I think you now see wh at I m capable of but that s nothing c ompared to what I h ave done before, an d will do it ag ain if necess ary. 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 wh ite 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 to her is nothing co mpared to what w as going to happen th at day. I came th ere to kill her and that s the truth . . . The surreptitious leaving of letters for Ms. P. and Adriana on M s. 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 -3- stop me . . . The le tter to Adr iana state d, Y our n o good m othe r 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. a nd two to Adriana . The letters w ere more ra mbling than the earlier ones, b ut of the same te nor. 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 wa tch yo u alm ost every d ay, remember I have an[] A1 rifle that could hit you from 2 footba ll fields a way so d on t pla y. 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 co dified, with only -4- style changes, as § 3-802 of the Criminal Law A rticle. The sub stantive part o f the statute provided that [a] per son may no t engage in stalking an d set forth the penalties for a violation. Subsection (a) defined stalking as a malicious course of condu ct that includes approaching or pursuing another person with intent to place tha t person in reasonable fe ar: (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, tha t eviden ces a co ntinuity of purpo se. Hackley s defense is a stepped one. He contends, first, that, despite the fact that the statute defines stalking as a malicious course of conduc t 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 stan d. Approaching or pursuing, he next insists, requires that the victim be aware of the fac t 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 w as not there to see him do it, does not, in his view, constitute approaching or pursuing her. We are not imp ressed. His argumen t has no m erit. -5- The issue presented is one of statutory construction , and the rule s for that are w ell defined. Our predominant goal is to ascertain and effect uate the legislativ e 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 (2 005). 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 stated intent. Rather, it def ined the crim e as a malicio us course o f conduc t 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 w ords includ es or includ ing mean , unless the co ntext requires otherwise, includes or including by way of illustration and not by way of limitatio n. (Emp hasis 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 M aryland, to be followed in preparing any legislation for the General Assem bly, directs legislative drafters to [u]se means if the definition is intended to be exhaustive ( Depa rtment me ans the D epartmen t of Agricu lture ) and to [u]se includes if the definition is intended to be partial or illus trative ( D isinfect includ es to sterilize ). See M ARYLAND S TYLE M ANUAL FOR S TATUTORY L AW, Department of Legislative Services (Jan. 1998) at 27. -6- Application of those legislatively created interpretative mandates leads to the clear conclusion that includes, as used in § 124, wa s intended to be illustrative of the kinds of malicious conduct that could co nstitute stalking, and not to limit the crime to app roaching or pursuing a nother pers on. The e ssential elem ent is the malicious course of conduct, which, along with other things, includes approaching or pursuing another person, coupled with the stated intent. Relying almost entirely on legislativ e history, H ackley as serts the contrar y. He claims that, in light of a separate harassment statute and the fact that stalking statutes in other States include approaching or pursuing as elements, the Legislature, notwithstanding the language it used, must have intended for approaching or pursuing to be required elements of the M aryland o ffense . There is no need, of course, even to consider legislative history if the words of the statute are unambiguous, as we believe they are. The fact is, however, that the legislative history supports our view of the plain meaning of the langu age, rather than Hack ley s stretched interpretation, and, as that history is the essence of his argument, we shall comment on it. The prohibition against stalking was first enacted in 1993. The Legislature had prev ious ly, in 1986, enacted a law against harassment which, when the stalking law was enacted, appeared in § 121A of Art. 27. The harassment law, after defining course of conduct precisely as it was later defined in the stalking law, made it a misdemeanor subject to a 90 day jail term and a $500 fine for a person -7- [t]o follow another person in or about a public place or maliciously engage in a course of conduct that alarms or seriously annoys another person: (1) with intent to harass, alarm, or annoy the other person; (2) After reas onable warning or request to desist by or on behalf of the other person; and (3) Wit hout a le gal pur pose. The stalking law emanated from tw o bills introduc ed into the 1993 session of the General Assembly Senate Bill 7 and House Bill 433. The initial versions o f the two b ills were quite different, although, through the legislative process, they were conformed and were enacted in identical fa shion. The initial version o f Senate Bill 7 was not a stalking law, but rather an enhanced harassment law. It would have limited the ex isting harassm ent law to conduct that merely annoyed or was intended to annoy another person. The new crime of harassment would have been defined as engag[ing] in a knowing and willful course of condu ct that is directed at a specific person, including repeated following of a person, that (i) Causes the person to fear for the person s own saf ety or the safety of a family memb er; (ii) Would cause a reasonable person to fear for the person s own safety or the safety of a family member; and (iii) serve s no leg itimate p urpose . Engagement in that activity with intent to cause the other person to fear for the person s sa fety or that of a f amily memb er would have bee n a misdem eanor sub ject to one year in jail and a $1,000 fine. If the defendant, in carrying out that conduct, m ade a cred ible threat against the person being harassed, the penalty was increased to two years and a -8- $2,000 fine. The Senate Judicial Proceeding Committee completely rewrote the bill and turne d it into a stalking of fense. W ith the committee amendments, which were adopted by the Senate, the bill made it a crime to stalk another person with the intent to place that person in fear of bodily injury or death. The word stalk was defined as to harass or repeatedly follow another person in such manner as (i) to cause that person to suffer substantial emotional distress; and (ii) w ould caus e a reasona ble person to suffer substantial emotio nal distre ss. Three terms used in that provision harass, repeatedly, and follow were also defined. Harass was defined as a course of conduct directed at a specific person which would cause a reasonable person to fear bodily injury or death, including oral threats, written threats, vandalism, or nonconsensual physical contact. Repeatedly was defined as two or more separate occasions, and follow was defined to mean to maintain a visual or physical proximity over a period of time to a specific person in such a manner as would cause a reaso nable p erson to fear bo dily injury or d eath. House Bill 433 took a somewhat different approach. The initial version prohibited stalking and defined stalk as to engage in a knowing and willful course of conduct that involves an expres s or implied threat to kill another person or to inflict bodily injury on another person that is made: (i) with the intent to place tha t person in fear of bod ily injury or death; and (ii) in any manner or context th at causes tha t person to re asonably fea r bodily injury or death. T hat condu ct would have constituted a felony subject to a three year prison -9- sentence and a fine of $5,000, but, for a subsequent offense or if the person was subject to a domestic violence protective o rder whe n the cond uct was c ommitted , the penalty wo uld have been five years in prison and a $10,000 fine. In neither version was approaching, following , or pursuing a required e lement. As occurred in the Senate with respect to Senate Bill 7, the House Jud iciary Committee complete ly rewrote H ouse Bill 43 3, to put it essen tially in the form in which it was enacte d. Wh en Sen ate Bill 7 reache d the H ouse o f Dele gates, the House Judiciary Committee amended it to re ad precisely as H ouse Bill 43 3 read w ith the Hou se Judiciary Committee amendments. When House Bill 433 reached the Senate, the Senate Judicia l Proceedings Committee amended it to read as Senate Bill 7 read when it passed the Senate. The two Houses were thus in disagreement, each insisting on its version of what the law should say. Both bills were referred to a Conference Comm ittee, which opted for the House version of the bill, and, as noted, both bills were enacted in that manner. The n ecessary amendm ents were add ed to Ho use Bill 433 to restore it to the form in which it passed the House, and both bills, appropriately enrolled, were signed by the Governor as 1993 Md. Laws, chs. 6 and 7. The committee files with respect to both bills reveal two critical fa cts: first, that the Legislature was concerned that the existing harassme nt and assa ult laws w ere not ade quate to deal with the kind of conduct sought to be made criminal in the stalking law, and second, that it was well aware that many States had already adopted laws dealing with stalking and -10- that the language used in those laws tended to differ from State to State. The Senate Judicial Proceedings Committee Floor Report on House Bill 433, as amended by that committee, notes, for example, that a man who makes threatening telephone calls to his ex-wife several times a week w ould prob ably display the type of stalking beh avior cove red by the bill [,bu t] he would not be guilty of assault unless he showed the present intent and means to injure his ex-wife on the spo t. The Flo or Repo rt also points o ut that it is not always possible or feasible in [a] stalking situation for th e victim to pr ovide a rea sonable w arning or re quest to desist, which w as a requirem ent of the harassment law. An intent to include a series of threatening telephone calls as a form of stalking is c learly inconsisten t with an intent to require a physical approaching or pursuing of the victim. Copies of and references to the laws in other States appear in the legislative files, and the Legislature was thus aware that some of those laws defined stalking in terms of following or pursuing the victim. The General A ssembly had before it not only that kind of information but at least four different versions of a stalking law the original approach taken in Senate Bill 7, the original approach taken in House B ill 433, the Senate Judicial Proceedings Committee rewriting of both bills, and the House Jud iciary Committee rewriting of b oth bills. It ended up adopting the House Judiciary Committee version, which included approach ing or pursu ing the victim but did not limit the crime to that conduct. In light of the extensive legislative consideration given to the matter, we must assume that the ultimate articulation of the crime w as deliberate and intended that the language used denote s precise ly what th e Legis lature in tended . We -11- thus hold that any malicio us course o f conduc t intended to place ano ther person in reasonab le fear of serious bodily injury or death or that a third person likely will suffer such ha rm constitutes stalking. Notwithstanding Hackley s protestations, there can be little doubt, and certainly no reasonab le doubt, that his conduct satisfied that standard. There were four occasions, occurring within the p eriod of a m onth the initial vicious assault, leaving threatening letters on the victim s c ar, approac hing the vic tim early in the morning in the same truck he drove on the first occasion coupled with the mysterious disappearance of the victim s dog, and leaving the bookb ag containing four m ore threatening letters on the victim s car. JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. -12-
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