text:
    DAVID ALLEN HUMPHREY v. STATE OF MARYLAND
    [No. 1024,
    September Term, 1977.]

      Decided June 8, 1978.

      The cause was argued before Mokton, Moylan and Couch, JJ.

      Harold Buchman, Assigned Public Defender, for appellant.

      Arrie W Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Edwin H W Harlan, Jr., State’s Attorney for Harford County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Following a jury trial held in the Circuit Court for Harford County (Close, J., presiding), appellant was convicted of two counts of first degree murder, two counts of robbery with a deadly weapon and a single count of unlawfully carrying a handgun upon or about his person. He was sentenced to two consecutive terms of life imprisonment for the murder convictions, two twenty year terms for the robbery convictions, to run concurrently with each other and consecutively to the life imprisonment sentences, and a consecutive three year term for the handgun conviction.

In this appeal appellant raises the following issues:

I. “The Court below erred in admitting, in violation of the Fourth Amendment, fruits of a warrantless house search based on an alleged consent.”
II. “The appellant did not waive his right to counsel and his confession was improperly admitted in evidence.”
III. “The Court below erred in admitting, in violation of the Fourth Amendment, material found in a warrantless search of a motor vehicle.”
IV. “The convictions for robbery with a deadly weapon must be vacated because they merged with the first degree murder convictions.”

The record reveals that the bodies of Louis Conti and George Whayland were found on the morning of August 20, 1976, in a cement culvert on Route 13 in Wicomico County. An autopsy report disclosed that the deaths were attributable to gunshot wounds. The victims were employees of the Beer Market located in Salisbury, Maryland, and were working there on the night of August 19,1976. A witness for the State, Harry Dorsey, testified that he went to the Beer Market about 9:30 p.m. on August 19,1976, to purchase beer and saw his friends Conti and Whayland leaving the premises with an unidentified man who was carrying a brown paper bag. He went into the store to await the return of Conti and Whayland. When they had not returned in five or ten minutes, he called the police. Victor Rayne, the owner of the store, testified that $687 was taken from the cash register that night and two sixpacks of Schlitz beer had been removed from the cooler as well.

Verlin Lovett testified that he and the appellant, who was a neighbor, had purchased beer at the Beer Market in the early evening of August 19,1976, after which they returned to Lovett’s home. At approximately 9 p.m. appellant left by himself in his pick-up truck, ostensibly to collect some money. He returned around 10 p.m. Shortly thereafter he suggested going to the Wagon Wheel night club to meet some women since he had a lot of money, which he counted out to more than $400. At the Wagon Wheel, appellant, who was an employee of a trash collection business, paid for all of the drinks. Later that evening appellant became engaged in an altercation and fired his pistol in the air about four times. Lovett testified that this pistol resembled the one shown at the trial. Lovett’s testimony was essentially verified by his “common-law wife,” Marianna, and by John Phillips, who was visiting Lovett at the time.

Several witnesses testified that they saw an individual, whose appearance and dress matched appellant’s, lurking around the Beer Market about 9:10 p.m. on the night in question.

As a result of the Wagon Wheel incident and the eyewitness descriptions of the man seen in the vicinity of the Beer Market, attention began to focus on appellant. Sergeant Dykes of the Salisbury Police Department testified that he contacted appellant at his home about 11:30 p.m. on August 21 and took him to police headquarters for questioning. After having been read his Miranda rights, appellant asked to talk to his attorney. The attorney was called but was not in and did not return the call. Sgt. Dykes testified that he asked appellant if he wished to have another attorney. Appellant declined, at which point the questioning ceased.

Sergeant Dykes and several other police officers then returned to appellant’s home where they were admitted by Ella Humphrey, appellant’s wife. Although she was informed that her husband was suspected of the murders, she agreed, according to Sgt. Dykes, to let the police search the house. The police had not obtained a search warrant. The search uncovered a .38 Special Charter Arms revolver, a Ruger .375 Magnum revolver and $150 hidden in a hat. Sgt. Samuel Chaffey corroborated Sgt. Dykes’ account as to the voluntary nature of Mrs. Humphrey’s consent.

Mrs. Humphrey stated at trial that she was aware that she did not have to consent to the search but did so because she did not think the officers would find anything. Although she stated that she got “uptight” in the presence of the police, she testified that no threats or promises were made to her. Moreover, Sgt. Dykes testified that he told Mrs. Humphrey that any evidence found would be used in the prosecution of her husband.

Detective Elton Harrington testified that he was with appellant at the police station when another police officer, Detective Leo Bateman, entered around 12:15 a.m. on August 22 and said: “He doesn’t have to tell you anything, Colbourne [Sgt. Dykes] just found the gun.” According to Detective Harrington, appellant then stated: “I’ll tell you what you want to know.” Detective Harrington added that no request for a statement had been made, nor had any threats, promises or coercion been employed. Thereafter, appellant gave a statement, which was recorded on a cassette tape, in which he admitted participating with several other men in the robbery of the Beer Market which resulted in the murders. Detective Bateman stated that he purposely revealed the results of the search in appellant’s presence in the hope that this fact would prompt appellant to talk.

Appellant also revealed in the confession that he had used a pick-up truck, owned by his employer, in the execution of the crimes. As a result, the police conducted a warrantless search of the truck which was parked in front of appellant’s house at the time of the search. A few strands of hair of the victim Whayland as well as his fingerprints were discovered in the truck according to the expert testimony of Robert Radnotti, a forensic chemist, and Urban Wright, a fingerprint expert. Radnotti also testified that tire impressions taken at the scene where the bodies were found were approximately the same size and tread design as the tires on the pick-up truck. Finally, a firearm’s identification examiner stated that the bullets extracted from the victims had been fired from one of the pistols found in appellant’s house.

I.

Appellant contends that Mrs. Humphrey’s consent to the search of their house was not voluntary, but rather was mere “acquiescence to a claim of lawful authority” by the police. “Preliminarily, with respect to the scope of our review ... in the presence of alleged infringements of constitutionally protected rights, we are required to examine the entire record and to make an independent, reflective constitutional judgment on the facts.” Whitman v. State, 25 Md. App. 428, 435 (1975).

We note initially that “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a [warrantless] search, he has the burden of proving [by a preponderance of the evidence] that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U. S. 543, 548 (1968). See also Johnson v. State, 30 Md. App. 280, 294 (1976). The determination whether the consent was voluntary, in the constitutional context, is a factual question to be determined from the totality of all the circumstances. “[A]ccount must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Schneckloth v. Bustamonte, 412 U. S. 218, 229 (1973).

Appellant asserts that because of the events of that night, Mrs. Humphrey was “in a state of shock and incapable of denying [the police] ... the right to search.” Appellant points out that “Mrs. Humphrey was 23 years old, with a tenth grade education, with four small children in the house, [that] she had never been arrested or in custody herself or in a situation like the one in which she found herself. She had no telephone to communicate with anyone,” and became “uptight” in the presence of the police.

On the other hand, we observe that the police officers employed no chicanery or any form of coercion whatsoever in their dealings with Mrs. Humphrey. In fact, Sgt. Dykes and his colleagues were remarkably candid and forthright about what their intentions were and what they hoped to accomplish. They informed Mrs. Humphrey that her husband was suspected of murder and that they hoped to find evidence in the house which they could use in the prosecution of the case.

The evidence does not support a finding that Mrs. Humphrey’s reason or judgment was, as appellant asserts, overcome by her “vulnerable subjective state.” Throughout her conversations with the police, she was in the secure atmosphere of her own home and was not under arrest nor in fear of being arrested. While not controlling, we find it significant that she was totally cognizant of the fact that she could have refused permission to search had she wished. Mrs. Humphrey testified that she allowed the search to take place nonetheless because she did not believe that they would uncover any incriminating evidence. Thus, it appears that Mrs. Humphrey’s willingness to allow the warrantless search to take place was basically a tactical decision calculated “to turn suspicion away from [her husband]... by appearing to give the authorities innocent and wholehearted cooperation.” United States v. Curiale, 414 F. 2d 744, 747 (2d Cir. 1969), cert. denied, 396 U. S. 959 (1969).

In view of the totality of the surrounding circumstances, therefore, we think it is clear that Mrs. Humphrey’s consent to the search was the product of an intelligent, knowing and voluntary decision.

II.

Appellant next contends that he was denied the rights guaranteed to him under the fifth and sixth amendments to the United States Constitution when the trial judge admitted the confession which he tendered to Detectives Bateman and Harrington in the early morning hours of August 22. It is pellucid that appellant, upon his arrest and the subsequent recitation of his Miranda rights, chose to exercise his right to representation before making any statements. It is also clear that the police officers did not interrogate appellant after he invoked his right to remain silent. He claims, however, that he was unconstitutionally induced to confess as a result of Detective Bateman’s representation in his presence that Sgt. Dykes had “just found the gun” in the course of a search of appellant’s house.

With regard to appellant’s right to be free from compulsory self-incrimination under the fifth amendment, the cases are clear that “the mere fact that the accused was motivated to make an inculpatory statement in reliance upon the officer’s deceit does not render the accused’s statement inadmissible or involuntary.” Hopkins v. State, 19 Md. App. 414, 424 (1973). See also Frazier v. Cupp, 394 U. S. 731 (1969). We thus have no compunction in concluding that where, as here, no deceit was utilized by the police in their endeavor to elicit a statement from the accused, the confession was voluntary and not in derogation of his fifth amendment rights.

Appellant’s contention that he was denied his sixth amendment right to counsel is similarly misplaced. Essentially, he argues that as a result of his asserted desire to speak to his attorney before making a statement, the sixth amendment precludes the admission of the subsequently made inculpatory statement because of the circumstances under which it was elicited.

In support of his position, appellant refers to Watson v. State, 282 Md. 73 (1978) and State v. Blizzard, 278 Md. 556 (1976), both of which are the progeny of Massiah v. United States, 377 U. S. 201 (1964). In Massiah, a merchant seaman was arrested and indicted for possession of narcotics. He retained counsel and was released on bail. Thereafter, a co-defendant, acting in concert with the government, permitted a radio transmitter to be installed in his car by which means a narcotics agent could overhear any conversation carried on therein. Massiah made several incriminating statements in the course of a conversation with the co-defendant which the government offered at trial. Justice Stewart, speaking for the Supreme Court, ruled that the indirect and surreptitious interrogation of Massiah, conducted through the co-defendant, violated his right to have counsel present at all interrogations.

While we do not quarrel with appellant’s assertion that he was entitled to have counsel present at all interrogations, direct or indirect, Miranda v. Arizona, supra; Escobedo v. Illinois, 378 U. S. 478 (1964), it is also true that Massiah does not alter the well established principle that one may waive this right, as long as the waiver is freely, voluntarily and intelligently made, Watson v. State, supra at 82; Jones v. State, 38 Md. App. 288, 292 (1977).

In the case at bar, appellant’s confession was not prompted by any questioning on the part of the police. In fact, Detective Bateman specifically stated that it was not necessary for appellant to say anything. Appellant’s decision to confess, therefore, is tantamount to a spontaneous statement and not within the “interrogation” prong of the Miranda doctrine. See, e.g., Graybeal v. State, 13 Md. App. 557 (1971).

Appellant proffers, however, that since Detective Bateman readily admitted that his revelation to appellant that the gun had been discovered was calculated to elicit a response from him, he was “tricked,” in the Massiah context, into waiving counsel and inculpating himself. We do not agree. The mere fact that Detective Bateman was cognizant of the psychological ramifications that his revelation might have on appellant does not, in the absence of some sort of deception, constitute trickery. Since Detective Bateman’s statement to the other officer in appellant’s presence was absolutely true, we do not feel that appellant was “tricked” into waiving his right to counsel at the time he gave his statement. The voluntary nature of the waiver thereby renders the confession admissible.

III.

We concur, however, with appellant’s contention that the trial judge erred in admitting the hair samples and fingerprints found in appellant’s truck. Since a search warrant had not been issued prior to the search, we begin our analysis with the presumption that the search was per se unreasonable. Gatling v. State, 38 Md. App. 255, 258 (1977). We reject the State’s position that the search here was authorized by virtue of the automobile exception to the search warrant requirement first enunciated by the Supreme Court in Carroll v. United States, 267 U. S. 132 (1925).

Under this exception, a warrantless search of an automobile is not violative of the fourth amendment when probable cause exists that the vehicle contains “fruits, instrumentalities or other evidence of a crime” at the time of the search, Mobley and King v. State, 270 Md. 76, 81 (1973), and that exigent circumstances are also present which compel a prompt search of the vehicle. Appellant does not assert that probable cause was lacking at the time of the search. Rather, it is contended that the search was repugnant to the fourth amendment since no exigent circumstances were present which would mandate an immediate warrantless search of the automobile.

At the time of the search, appellant was under arrest and was being held at the police station. The search was conducted during the middle of the night at a time when the truck was parked in a placid environment in front of appellant’s house. The State failed to proffer any evidence that either appellant’s employer (the owner of the truck), appellant’s accomplices in the crime, or his wife in any way evidenced a potential to remove the truck before the police could obtain a search warrant. In this factual posture we are persuaded that the reasoning employed by Justice Stewart in Coolidge v. New Hampshire, 403 U. S. 443 (1971) is also appropriate to the case sub judice. At pages 461-62, he said:

“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States — no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where ‘it is not practicable to secure a warrant,’ Carroll, supra, at 153, and the ‘automobile exception,’ despite its label, is simply irrelevant.”

See also Dixon v. State, 23 Md. App. 19 (1974).

Under circumstances such as these when there is no apparent risk that a delay in the search would raise the possibility of destruction or removal of the evidence, it is incumbent that the police first obtain a search warrant, as mandated by the fourth amendment, before a search of the vehicle can be conducted. The individual rights safeguarded by the requirement that a search warrant be issued by a neutral, detached magistrate prior to search far outweigh the inconvenience incurred by having the police guard the vehicle for a short period of time when, as here, such action could have prevented its removal. Cf. England and Edwards v. State, 274 Md. 264 (1975).

The State makes the alternate argument that the search of the truck also qualifies under the “search incident to a lawful arrest” exception to the warrant requirement. We think this position is patently frivolous. In Chimel v. California, 395 U. S. 752 (1969), the Supreme Court limited this type of search to the area within the arrestee’s “immediate control.” 395 U. S. at 763. It cannot conceivably be argued that the truck was within appellant’s immediate control since he was in the police station at the time the truck was searched. Under these circumstances, we simply do not find that any of the various criteria supporting the “search incident” exception are applicable to the case at bar.

Even though we conclude that the fingerprint and hair sample evidence were erroneously admitted, a reversal is not required. The record reveals that there was overwhelming evidence before the jury of appellant’s guilt over and above the fingerprints and hair samples. Although there is no need for us to recount all of the evidence, we do note that the State proffered for the jury’s consideration, inter alia, the murder weapon which was discovered hidden in appellant’s house and, more importantly, appellant’s confession. We conclude that the erroneous admission of the evidence obtained from the unconstitutional search of the truck was “harmless error” beyond a reasonable doubt. Dorsey v. State, 276 Md. 638 (1976).

IV.

In his final contention appellant asserts that the simultaneous convictions for first degree murder and armed robbery violate his rights under the fifth amendment’s double jeopardy clause. In Newton v. State, 280 Md. 260 (1977), the Court of Appeals made it clear that separate convictions for first degree murder under the felony-murder statute, Maryland Code, art. 27, §§ 408-10, and the underlying felony (in this case armed robbery, which is governed by § 410) violate the double jeopardy clause, since proof of the commission of the underlying felony is an essential element in the crime of felony-murder. In such a situation, the conviction for the underlying felony is merged into the felony-murder conviction and thereby vacated.

On the other hand, merger is not appropriate when the first degree murder conviction is predicated on an unjustified, premeditated killing with malice aforethought as set forth in Maryland Code, art. 27, § 407, since the murder conviction, in such a situation, was entered without reliance on a finding of guilt of a lesser included crime.

In the present case, the jury simply returned verdicts of guilty of murder in the first degree. They did not elucidate whether the convictions were premised on a finding of premeditation (§ 407) or under the felony-murder statute (§ 410).

In Frye v. State, 37 Md. App. 476 (1977), Chief Judge Gilbert, after a careful and penetrating analysis of Newton v. State, supra, concluded at 479-80, that “Newton should read in pertinent part:

Tf ... the murder conviction is premised upon independent proof of wilfulness, premeditation and deliberation under § 407, or if the evidence is sufficient for a jury [under proper advisory instructions from the court] to find those elements, the offenses would not merge. Each offense would then require proof of facts which the other did not, and convictions on both would be proper.’ ”

Addressing the factual posture presented in Frye, Chief Judge Gilbert said, at 478:

“The nub of the problem is that if the jury found the appellant guilty of the ‘felony murder’ then, under Newton and its progeny, the robbery charge and the handgun violation directly attributable to the robbery offense would have merged into the felony murder. From the record, it is impossible for us to determine with any degree of certainty which of the permitted inferences the jury drew.”

He went on to say, at 480:

“As we have indicated, in the absence of such jury instructions and in light of the resultant verdicts, we are unable to state which of the permissible inferences the jury drew in arriving at its verdict in the case sub judice. We resolve the doubt in favor of the appellant, and we vacate the judgments entered on the robbery with a deadly weapon and the related handgun charge.”

The case at bar falls four-square within the factual posture of Frye. Here there was an absence of “the proper advisory instructions” delineated in Frye and we are unable to perceive which permissible inference the jury drew in arriving at its verdicts. Accordingly, we resolve the dilemma in favor of appellant and vacate the two judgments of convictions for robbery with a deadly weapon.

Judgments of murder in the first degree and handgun violation, affirmed; judgments of robbery with a deadly weapon, vacated; costs to be paid by appellant.

      . Appellant was also found guilty of use of a handgun in the commission of a felony, to wit, robbery with a dangerous and deadly weapon. No sentence was imposed for this conviction.

      . Miranda v. Arizona, 384 U. S. 436 (1966).

      . Section 410 states that “[a]ll murder which shall be committed in the perpetration of ... robbery ... shall be murder in the first degree.”

      . The Court of Appeals granted certiorari (No. 133, September Term, 1977); case argued on May 3, 1978; decision pending.

      . But see Jones v. State, 38 Md. App. 288 (1977) (cert, granted together with Frye, No. 173, September Term, 1977) and Godwin v. State, 38 Md. App. 716, 736-38 (1978).


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    MIKE BROWN v. STATE OF MARYLAND
    [No. 1056,
    September Term, 1977.]

      Decided June 8, 1978.

      The cause was argued before Moylan, Lowe and Mason, JJ.

      Lawrence S. Greenwald, with whom were Barry F. Rosen and Gordon, Feinblatt, Rothman, Hoffberger & Hollander on the brief, for appellant.

      Gilbert H Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles Wehland, State’s Attorney for Howard County, Ronald L. Spahn, Deputy State's Attorney for Howard County, and Albert Gallatin Warfield, HI, Assistant State’s Attorney for Howard County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

If, as it has been said, law is common sense as amended by the Legislature, it is an unfortunate fact that common sense is judicially modified as well.

At common law the crime of arson was a homeowner’s protection, criminalizing the wilful and malicious burning of the dwelling house of another. Rather than modify that common sense protection, the Legislature expanded its scope to include any building, whether owned by the person who burned it or by anyone else; however, the safeguard for the innocent of requiring proof of a wilful and malicious state of mind was statutorily retained. Yet the possible consequences of that broadened scope still portend problems even for one who chooses to use fire to raze or demolish an old unwanted building on his own property, because despite an environmental or other governmental “permit”, there appears to be no absolution in the statute allowing its sanctions to be waived by anyone for any purpose. The only hedge against conviction for innocently doing away with a dilapidated building eyesore in such a manner is the apparently substantial burden placed upon a prosecutor to prove that an accused “wilfully” burned such a building with a “malicious” intent.

Even that protection, however, has been judicially eroded over the years to such an extent that a showing of an intent to burn by the accused — even his own dilapidated building — is sufficient for a jury to convict. Wilfulness has been judicially equated with malice, and malice has been eroded to mean criminal intent. Thus we have come full circle. In disposing of an eyesore, one who elects to burn it, rather than raze it, is a felon if he merely intended to do so — because that which he intended is criminally proscribed, and he is charged with knowledge of that statutory proscription. That may sound a little scary, but if it appears absurdly improbable, let’s look at the analogous case of Mike Brown.

“Fire giveth lyght to things farre off, and burneth that which is next to it. The Court shineth to me that came not there, but singeth those who enter.”

— the building —

Because he caused the abandoned and derelict clubhouse at Laurel Raceway to be burned rather than razed or otherwise demolished, Mike Brown (a Laurel officer, director and substantial stockholder) was convicted of arson. The physical facilities at Laurel Raceway had deteriorated so badly that its 1975 summer meet could not be held at its own facility. On Brown’s behalf, and at his request, a Laurel administrative assistant named Patricia Ann Gorman obtained demolition bids for the clubhouse in anticipation of a major improvement of the track facilities. In light of the extensive estimates (in the vicinity of $15,000), Brown then had Ms. Gorman investigate the possibility of having the clubhouse burned by the Savage Fire Department. After initially agreeing, the Department subsequently declined because, upon looking into the situation, it determined that the proposed burning would be unsafe and environmentally unsound. Continued efforts through other fire departments were also unavailing. The building was ultimately burned (by a part-time employee and another person) at the direction of Ms. Gorman, who testified that she contracted for this extra-legal burning upon the instructions of Brown.

Seven questions are raised on appeal following Brown’s conviction by a jury in the Circuit Court for Howard County. The first two relate to the structure that was burned. As pointed out, that structure was a 20-year-old shell of an unused clubhouse, primarily of “[s]teel skeleton construction with a frame flooring interior and bearing walls with a built up roof”. The windows (including the viewing panels) had been removed or broken, utilities had been turned off, copper piping removed and the interior severely vandalized.

Initially, appellant calls upon us to define the term “building” as used in the arson statute, Md. Code, Art. 27, § 7, and though he would have it narrower, presses upon us as a starting point the definition extracted from Freeform Pools v. Strawbridge, 228 Md. 297, 301:

“Taken in its broadest sense it can mean only an erection intended for use and occupancy as a habitation, or for some purpose of trade, manufacture, ornament, or use, such as a house, store, or a church.” (emphasis added).

Presumably attracted by the “intended for use and occupancy” language, appellant veers south to a qualifying definition more applicably used in the arson case of State v. Cuthrell, 235 N. C. 173, imposing the condition that the edifice burned be “usable for some useful purpose”. Assuming we will adopt his composite definition of usable or intended for use, appellant then points out that the State failed to provide sufficient evidence to meet either criteria, an issue which he preserved by motion for judgment of acquittal.

We are not persuaded that because of the “intended for use” language used by the Court of Appeals in Freeform, the buildings the Legislature intended to protect from an arsonist’s torch are only those “usable” at the time of burning. In Freeform, a case ultimately limited to its facts, the litigant sought to encompass a swimming pool within the mechanics’ lien definition of a building. Quoting from Black’s Law Dictionary (4th ed. 1951), the Court there pointed out that:

“ ‘The identity or difference of meaning of the words ‘building’, ‘improvement’ and ‘structure’ depends upon context in connection with which they are used.’ ” Id. at 301.

Quite obviously a special lien for work and materials imposed upon a building already erected or improved logically would require the use limitations imposed by the Court’s definition. The Legislature, however, just as reasonably could use the term building in a statute enacted to protect real property from wilful malicious destruction, regardless of the prospective utilitarian purpose for which the building is left to stand. It is apparent from the statutory pattern that the legislative scheme is to criminalize any uncontrolled burning. Without regard to ownership of the thing burned, § 6 of Art. 27 forbids the burning of a dwelling house or “other outhouse that is a parcel thereof”; § 7 attaches that prohibition to any other building not a parcel of a dwelling house; and, presumably to include whatever combustibles that might be missed by the foregoing sections, § 8 appears to be a miscellaneous catchall ranging from haystacks to vehicular conveyances, and including a wide range of possible combustibles, such as “any pile of planks, boards, posts, rails or other lumber;...”. See appendix. The American Heritage Dictionary of the English Language definition for “building” is:

“Something that is built; a structure; an edifice.”

For this Court now to speculate that by using the word “building” the Legislature intended something more restrictive than its ordinary meaning, despite its obvious effort to include in its realm every type of burnable matter in whatever form, by using specific references followed by broad generic catchall terms to guard against restrictive interpretation, would be judicially to impose restrictive interpretation upon a term of common usage generally understood to apply without regard to its present or intended use.

It is inconceivable that the protection of the statute was directed toward something less than that, or that the law was designed to exclude from its strictures any unaccountable burning of a building simply because at the moment of its destruction it is not being used and is not presently planned for use, conversion or rehabilitation. Such interpretation would leave as fair game even the homes included in the “Homestead” restoration projects in the cities, and historically valuable structures whose owners are undecided whether to rehabilitate them for posterity at some expense to themselves, or, impelled by the profit nature, raze them to clear a potentially developable location. Such judicial imposition of unspoken legislative intentions would be absurd and we must not impute absurdity to legislative acts. State v. Fabritz, 276 Md. 416, 422, cert. denied, 425 U. S. 942.

Upon our failure to adopt this “intended for use” definition, appellant’s alternative contention seems to be that the structure burned must be “usable” or “capable of use” at the time of burning. But our reasoning as to its utility applies regardless of tense and we are not persuaded by his Carolina authority. Moreover, witnesses for both prosecution and defense referred to that which was burned as the “clubhouse”. The question then becomes, when is a clubhouse not a clubhouse? The instant case does not provide us with facts from which we could conclude that this structure was no longer a “clubhouse”, and therefore was not a building. Dilapidated or not, used or unused, the “clubhouse” still stood, and the evidence further demonstrated that its steel-framed walls and roof had, just months prior to the burning, been used for the storage of various persons’ property. Such standing structures fall under the protection of our statute, and their unlawful burning is proscribed despite their present, past or future purpose. If the Legislature intended to restrict the protection of buildings to those “in use” or those with a contemporaneous intended use, it could more easily have added such clarifying words than can we in retrospect, and with far more right to have done so.

— corroboration of accomplice testimony —

Rather than abandoning the need for corroboration as in the federal practice, the Court of Appeals has reaffirmed its faith in the protective device of requiring corroboration for the testimony of an accomplice, Brown v. State, 281 Md. 241. The degree of protection designed to shield a defendant from vindictive reprisals from, or clemency benefits for, a perjuring State’s witness is substantially restricted by the fact that “[n]ot much in the way of evidence corroborative of the accomplice’s testimony [is] required....” Brown, supra, at 244. This seems especially true when the trial judge instructs a jury that a witness is a criminal accomplice as a matter of law. In exchange for having the jury sift the case for a grain of corroborative evidence, which identifies the defendant with the perpetrators of the crime or shows his participation in it, an accused faces an implicit judicial ruling that he is culpable since there may not be an accomplice without a principal. The effect of such a ruling is to tell the jury that the defendant is a principal and so is guilty but will walk away from the crime unless they find that golden grain of corroborative evidence. Anno. Accomplices — Question of Law or Fact, 19 A.L.R.2d 1352, 1356.

Presumably, the appellant relied upon the absence of corroboration since he did not object to an instruction that Ms. Gorman was an accomplice as a matter of law and that, as such, her testimony required corroboration. Even here he overlooks the implication of guilt in the instruction and complains only that the corroborative testimony was insufficient. The difficulty is with that which had to be corroborated.

Appellant is charged as an accessory before the fact, i.e., not with committing an arson but of counseling or procuring it. Md. Code, Art. 27, § 7. His crime was in his conversation — not whether he had a conversation (which he readily admits), but what was conveyed thereby. Appellant’s own brief points out the very narrow line between guilt and innocence as being dependent solely upon what words were said between the accused and his admitted accomplice.

“The one respect in which the facts were disputed was whether appellant instructed Gorman to have the clubhouse burned unlawfully rather than through a fire department. Gorman testified he did, and her testimony is the only evidence linking appellant to any instruction to burn the clubhouse unlawfully. Appellant denied giving any such instruction, and insisted his instruction was to pursue burning through a fire department. Moreover, appellant testified that Gorman, herself, suggested the clubhouse be burned outside legal channels, but he refused.”

In short, his words were his deeds and culpability lay in a prefix: was the fire he admittedly ordered lawful or unlawful?

Corroboration of the accused’s participation in so narrow and clandestine a criminal act such as appellant would have us demand, would require testimony from a witness who was privy to the conspiratorial conversation. If such were the law, few conspiratorial crimes or crimes of a counseling or procuring nature could be proven. But that which must be corroborated is not necessarily the precise criminal act itself, for such evidence would be sufficient in itself to convict. It will suffice if the independent evidence tends to establish with a satisfactory degree of cogency facts material and relevant which would justify a factfinder in crediting the accomplice’s testimony. The evidence may corroborate lawful conduct if that conduct substantiates the presence of the accused at the scene of the crime. Wright v. State, 219 Md. 643, 649-652, cert. denied, 361 U. S. 851. Significantly, as pointed out in appellant’s brief, the crime with which appellant is charged is not the ultimate act of arson, but rather that of procuring such result through Ms. Gorman.

“It is important to bear in mind that the crime for which appellant was convicted was aiding, counseling or procuring the burning. Admittedly, there was corroboration as to an unlawful burning.”

It follows then, all that need be corroborated is Ms. Gorman’s testimony that appellant conversed with her regarding the burning of the building. Appellant’s own testimony clearly does so:

“Q. Mr. Brown, I believe you heard Mrs. Gorman testify that, from time to time, from about January, 1976, through March of Seventy-Six, there were discussions as to the burning of the clubhouse which you and she had. Did you at any time give Mrs. Gorman any instructions with respect to having the clubhouse burned?
A. Yes, I did.
Q. And what were those instructions?
A. To vigorously pursue the burning of the clubhouse.”

For purposes of corroboration it is of no significance that appellant completely denied either authorizing the burning without going through a fire department, or having authorized payment to the torchman. The factfinder must decide the truth or falsity of the divergent versions of the conversations which were the basis of the charge and he is free to believe all, part or none of appellant’s version and/or (once corroborated) all, part or none of the accomplice’s. In Re Appeal No. 1327, Term 1975, 32 Md. App. 478, 479-480.

“It has also been said that corroboration of a material point tending to connect the accused with the crime is sufficient for a jury to infer that the accomplice had testified truthfully even with respect to matters as to which there had been no corroboration.” Wright v. State, supra, 219 Md. at 652.

But for a confession, it is hard to conjure better corroborative evidence of a criminal conversation procuring an unlawful burning of a building than the admission of an accused that he did indeed insist that the transgressor “vigorously pursue the burning” of that building.

— malice —

Appellant’s next contention is that because the “only reason for the burning was to save demolition costs and not to injure anyone else or his property”, the State failed to prove malice within the meaning of Md. Code, Art. 27, § 7. Although we reject the State’s responsive argument (based upon sentence structure) that malice is not a necessary ingredient of the procuring aspect of the arson statute but applies only to the torchman, we find the record contains sufficient evidence of malice from which a jury could have concluded such to have been a part of the appellant’s mental state.

Originally, the use of the terms “wilfully and maliciously” in the arson statutes was simply a means of codifying the state of mind required for common law arson. Perkins, Criminal Law Ch. 3, § 2, p. 220 (2d ed. 1969); cf. Butina v. State, 4 Md. App. 312, cert. denied, 251 Md. 748. However, even when that phrase is used in a statute, it is (as it was in common law) a mistake to assume that the phrase adds any requirement of proof not included in the word “malicious” alone.

“An intentional act creating an obvious fire hazard to [a building], done without justification, excuse or mitigation, might well be characterized as ‘wilful’ (a word of many meanings), and would certainly be malicious, but as the law has developed it is a mistake to assume that the phrase ‘wilful and malicious,’ when found in the definition of common-law arson, adds some distinct requirement not included in the word ‘malicious’ alone.” (footnotes omitted). Perkins, supra, at 218.

We agree with appellant’s attempt to analogize malice in arson with that in homicide, and we find that Perkins does so as well; however, there the similarity ends. Appellant contends that malice means “ill will”, but Perkins clearly does not agree with that interpretation, nor do our own opinions. Perkins points out that:

“ ‘The malice which is a necessary element in the crime of arson need not . . . take the form of malevolence or ill will,’ just as nothing of this nature is needed for malice in the law of homicide.” (footnote omitted). Id. at 218.

In Evans v. State, 28 Md. App. 640, 693, aff’d 278 Md. 197, we quoted Perkins’ view of malice in homicide as he compared it with its meaning in a more colloquial context:

“ ‘In ordinary conversation the word ‘malice’ conveys some notion of hatred, grudge, ill-will, or spite, but no such idea is incorporated in the legal concept of ‘malice aforethought.’ . . . this crime [murder] may be perpetrated without the slightest trace of personal ill-will----’”

We also noted in Evans, supra, that as early as 1881, no less an authority than Mr. Justice Holmes pointed out in his Common Law that:

“ ‘It is just as much murder to shoot a sentry for the purpose of releasing a friend, as to shoot him because you hate him. Malice, in the definition of murder, has not the same meaning as in common speech, and, in view of the considerations just mentioned, it has been thought to mean criminal intention____’” (emphasis added). Evans, supra, at 692-693.

We note parenthetically then, that it is just as much arson intentionally to bum a building to save money for the owner as it is to do so vindictively in order to cost the owner money.

Although the erosion of the general definition of “malice” has recently come to the fore so intently in a murder context in light of Mullaney v. Wilbur, 421 U. S. 684, we recognized its synonymous limitation with criminal intent as applied to the arson statute over a decade ago. Because the law presumes all burning to be accidental, in order to prove the corpus delicti of arson, the State must overcome that presumption by proving the burning was by “criminal design”. Bollinger v. State, 208 Md. 298, 304. That, of course, is the eroded definition of malice which must be connected with the accused to effect sufficient evidence to convict. In Hughes v. State, 6 Md. App. 389, Chief Judge Murphy (then of our Court, now of the Court of Appeals), when discussing proof of the corpus delicti of arson, presupposed, if he did not expressly recognize, the erosion of the “malice” definition (as condensed from the wilful and malicious statutory usage) from one including malevolence and ill will as proof prerequisites, to one of an intended burning. He noted that the clandestine nature of arson ordinarily necessitates that malice be proved by circumstantial evidence. Such proof may take many forms, and is not limited to evidence of ill will.

“In establishing that the fire was of incendiary origin, viz., that it was willfully and maliciously set. . . . Incendiarism may be shown by the manner in which the fire was burned, by the presence of an odor of flammable liquid, by the fact that combustible materials or flammable liquids or their containers were found on the burned premises, by demonstrating the improbability that the fire had resulted from accidental or natural causes, by evidence of threats to destroy the property, by the isolation of the premises, by the absence of any natural cause for the fire, by the precautions taken to avoid a fire, or other facts of similar import tending to show that the fire had an incendiary origin.” (emphasis added). Hughes v. State, supra, 6 Md. App. at 394.

Encyclopedic, as well as text authorities, recognized that the proof of wilfullness and maliciousness consists of a showing that the burning was done “knowingly and according to a purpose” as “distinguished from accidentally and negligently____[T]here is no failure of proof where malice is not specifically proved, for malice may be presumed [inferred] from the wilfullness of the act of burning.” 5 Am. Jur. 2d § 52.

Here there was ample evidence of motive indicative of a deliberate execution of the burning including, from the appellant himself, expressions of anxiety in accomplishing the building’s destruction. In addition, Ms. Gorman’s testimony supported an inference that appellant was aware of the dangers involved in burning. She stated that the reason given by the fire company for declining to bum the building after having first agreed to do so was that:

“They said it was unsafe and because of environmental control.”

She further testified that appellant was inferentially cognizant of the fact that burning without a permit was itself a crime, but he considered the crime so insignificant that he was willing to take the chance.

From such testimony one could easily have concluded:

“The doing of a wrongful act intentionally, without just cause or excuse.
A conscious violation of the law (or the prompting of the mind to commit it) which operates to the prejudice of another person.
‘A condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.’ ...”

These conclusions are verbatim the first three-definitions of “malice” found in Black’s Law Dictionary 1146-1147 (3d ed. 1944).

Apparently appellant did not agree that the criminality of what appeared to him to be a de minimis infraction of the law should outweigh the substantial cost to the company he partially owned and whose interests he claims to have represented. Although that may be offered as a defense of justification, excuse or mitigation, and despite the fact that such conjecture on balance may not seem unreasonable, the act itself as statutorily proscribed is nonetheless unlawful — if a jury finds it has been carried into fruition and is not persuaded of appellant’s state of mind. It is in that context that we have reviewed the outcome of the case below. The question is not whether we consider the act unreasonable {i.e., justified, etc.) under the circumstances; it is whether a jury which did so conclude should have been permitted to decide the question. We think the evidence was sufficient for a jury to have inferred the burning was malicious, without regard to our own views of the facts.

— “exculpatory” evidence “suppressed” —

Appellant’s last two issues of error are not so factually beguiling. He complains that four items of “exculpatory evidence” were suppressed by the State despite “repeated requests” therefor.

The items of which he complains peculiarly reflected on Ms. Gorman’s credibility. In two instances, appellant contends there appeared conflicts between her grand jury testimony and her trial testimony. Demand was made at the conclusion of her trial testimony as follows:

“MR. GREENWALD [Defense Counsel]: At this time, Your Honor, I’d like to move that any statements given by Mrs. Gorman to the prosecution or the Fire Marshall or any other governmental agency relating to this case, be furnished.”

Even accepting appellant’s contention that this demand included grand jury testimony, it is inconceivable that an accused could interrupt a trial and demand that all possible conflicting statements be combed from the grand jury files. We pointed out in Tobias v. State, 37 Md. App. 605, 624, language in Giglio v. United States, 405 U. S. 150, 154, clearly dispositive of this issue. The Supreme Court said:

“We do not, however, automatically require a new trial whenever ‘a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict____’”

The same applies to the other two complaints of suppressed evidence, i.e., a fire investigator’s grand jury testimony that:

1) Ms. Gorman had counseled the “torch” in deceiving the investigators; and,

2) Ms. Gorman supported the “torch’s” false statement to the investigators.

We agree with the State that the evidence allegedly suppressed was simply not so material to guilt or innocence as to warrant a new trial. See Tobias, supra, 37 Md. App. at 628. The matters at best were collaterally discrediting and do not go directly to the question of guilt but simply to some possible impeachment of a State’s witness. As we pointed out in Younie v. State, 19 Md. App. 439, 460, rev'd on other grounds, 272 Md. 233, far more will be required to establish materiality.

To require disclosure of items, either from grand jury records or State investigative files, of such limited significance would place an impossible burden on the State, with compliance becoming progressively more difficult in relation to the complexities of a case. If Brady v. Maryland, 373 U. S. 83, requires this as appellant contends, it is a built-in reversal upon demand. Brady was not so intended. The evidence here was neither exculpatory nor material to guilt or punishment. See Moore v. Illinois, 408 U. S. 786, 794.

Appellant moves on to complain of the court’s failure to give instructions upon what he contends was an improper jury argument.

“He’s indicated that in fact he is the owner of approximately one-half of the stock of the corporation. If he didn’t spend the Ten Thousand Dollars and that becomes profit, then Five Thousand Dollars of that belongs to the — would belong to him as being the majority stockholder whether he got it in dividends or interest free loans or it stayed in the corporation because it increased his amount.”

Appellant’s argument is that the evidence showed that he had only 28% interest and there was no support for the State’s position of “approximately one-half” ownership.

Appellant is wrong. An affidavit of appellant in another case, admitted into evidence here, stated that:

“At all pertinent times he [Mike Brown] was the stockholder of record of 36,668 1/2 shares of the 73,337 shares of the issued and outstanding shares of stock of Laurel Harness Racing Association, Inc. (“Laurel”) owned by the individual plaintiffs____”

It was not improper for the State to argue reasonable and legitimate inferences from the facts in evidence, Wilhelm v. State, 272 Md. 404, 412; Pierce v. State, 34 Md. App. 654, 672, and it was not unreasonable to infer from that affidavit that appellant had a one-half interest.

Finally, appellant points out that a letter explaining why the fire department would not burn the building was improperly admitted because only improper hearsay evidence indicated that it ever came into possession of Ms. Gorman. Appellant contended that:

“Reversal is mandated unless the court is ‘satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.’ Dorsey v. State, supra, 276 Md. [638,] at 659 ..., Facyson v. State, 35 Md. App. 202, 206-207

Seemingly conceding evidentiary error in admitting the letter, the State contends — and we agree — that the error was harmless. Its reasons which persuade us are succinctly stated:

“The short answer to this contention is that any error was harmless beyond a reasonable doubt as Gorman had previously testified that the reason given by the Savage Volunteer Fire Department for not burning the clubhouse was that ‘it was unsafe and because of environmental control’ and that the Fire Marshall’s Office had inspected the clubhouse and concluded that it was an ‘unsafe training device’ and they would not allow the Savage Fire Department to burn it. As this testimony was admitted without objection, Appellee would submit that the subsequent admission of the letter was harmless beyond a reasonable doubt. Cf. Hutchinson v. State, 36 Md. App. 58, 61-62 (1977); Cummings v. State, 27 Md. App. 361 (1975), cert. den. 276 Md. 740. The letter was only offered to show that Gorman was advised by the Savage Volunteer Fire Department that it would not bum the clubhouse. It should be noted that Appellant testified that Gorman advised him that ‘the fire company no longer had an interest in burning the clubhouse’. As the refusal of the fire department to bum the clubhouse was not in dispute, Appellee believes that the admission of the letter could not have been a factor in the jury’s decision, and any error was harmless beyond a reasonable doubt. Dorsey v. State, supra.”

Judgment affirmed.

Costs to be paid by appellant.

APPENDIX

Md. Code, Art. 27:

“§ 6. Dwelling or adjoining building.

Any person who wilfully and maliciously sets fire to or bums or causes to be burned or who aids, counsels or procures the burning of any dwelling house, or any kitchen, shop, bam, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself, or of another, shall be guilty of arson, and upon conviction thereof, be sentenced to the penitentiary for not more than thirty years.”

“§ 7. Barn, garage, etc.; shop, factory, etc.; church, school, etc.; public bridge.

Any person who wilfully and maliciously sets fire to or bums or causes to be burned or who aids, counsels or procures the burning of any barn, stable, garage or other building, whether the property of himself or of another, not a parcel of a dwelling house; or any shop, storehouse, warehouse, factory, mill or other building, whether the property of himself or of another; or any church, meetinghouse, courthouse, workhouse, school, jail or other public building or any public bridge; shall be guilty of a felony and upon conviction thereof, be sentenced to the penitentiary for not more than twenty (20) years.”

“§ 8. Barrack, crib, hay, com, lumber, etc.; railway car, watercraft, vehicle, etc.

Any person who wilfully and maliciously sets fire to or bums or causes to be burned or who aids, counsels or procures the burning of any barrack, cock, crib, rick or stack of hay, com, wheat, oats, barley or other grain or vegetable product of any kind; or any field of standing hay or grain of any kind; or any pile of coal, wood or other fuel; or any pile of planks, boards, posts, rails or other lumber; or any streetcar, railway car, ship, boat or other watercraft, automobile or other motor vehicle; or any other personal property not herein specifically named (such property being of the value of twenty-five dollars and the property of another person), shall upon conviction thereof, be sentenced to the penitentiary for not more than three (3) years.”

      . See § 7 appended (Md. Code, Art. 27).

      . John Lyly, Euphues and his England, ii 120

      . “I. Did the State prove that the structure burned was a ‘building’ within the meaning of Article 27, § 7?
      II. Did the lower court err in failing to instruct the jury that in order to convict, the structure burned had to be a ‘building’ at the time of the burning?
      III. Under the circumstances of this case, was accomplice testimony sufficiently corroborated?
      IV. Did the State prove ‘malice’ within the meaning of Article 27, § 7, where the only reason for the burning was to save demolition costs and not to injure anyone else or his property?
      V. Did the State suppress exculpatory evidence, thereby depriving appellant of due process of law?
      Vi. Did the lower court err in failing to give instructions to correct an improper prosecution argument?
      VII. Did the lower court err in admitting a letter where the only foundation offered for admissibility was hearsay?”

      . “Frequently the law serves only to define the means and limit the extent to which man may go in achieving an otherwise legitimate goal.” Snowden v. State; 33 Md. App. 659, 659-660.

      . In her testimony, Ms. Gorman indicated that appellant was under pressure to have the clubhouse demolished expeditiously, and that attempts to have the burning accomplished through legal channels proceeded sluggishly and were ultimately unsatisfactory, she related discussions between herself and appellant about hiring someone to bum the building unlawfully and the cost of such an undertaking. Finally, the evidence demonstrated that, as a substantial stockholder, appellant would profit proportionally by whatever demolition costs savings were effected by the fire.

      . Appellant’s brief describes these as follows:
      “Obviously, the contradiction between Gorman’s trial testimony and her grand jury testimony impeaches her credibility. Also, since appellant testified at trial he never was told about any plan to demolish the building in exchange for steel, Gorman’s grand jury version would have supported appellant’s testimony, thereby enhancing his credibility. This would have been in sharp contrast with her trial testimony, which contradicted appellant.
      Fourthly, Gorman, testifying at trial as to the dilapidated condition of the clubhouse, said ‘possibly some ceiling tile ... was left.’ However, during her grand jury testimony, she testified: ‘... I mean there was nothing left, absolutely nothing. There wasn’t even ceiling tile left.’ Once again, the direct contradiction between Gorman’s trial testimony and her grand jury testimony impeaches her credibility. Moreover, her grandjury testimony as to the absence of ceiling tile is substantive evidence bearing on whether the clubhouse was a ‘building’. See discussion supra at 5-7. However, the State failed to furnish this information.”

      . We emphasize that our reasoning on this issue is strictly confined to the question of whether the withholding of witnesses’ grand jury testimony constituted a due process violation under the Brady doctrine. Appellant’s brief broadly claims a due process deprivation based on the suppression of exculpatory evidence, and elusively refers to the court’s refusal to require “that any statements given by Mrs. Gorman to the prosecution or the Fire Marshall or any other governmental agency relating to this case, be furnished.” Appellant inferably urges, without direct argument on the point, that he was entitled to inspect all prior statements of prosecution witnesses who had testified at trial, regardless of their adiuaged materiality, for purposes of impeachment. Clearly, this goes beyond the confines of Brady. However, at trial, counsel expressly denied any intention of seeking more discovery than required by Brady, even while making such demands:
      “I’m satisfied to limit my request to witness statements to the extent they permit cross-examination for impeachment which is material but 1 think, as a practical matter, I have to see the witness statements before knowing what is or is not material.”
      The right to review such witness statements is a procedural matter that has not been constitutionally mandated, see Jencks v. United States, 353 U. S. 657; Palermo v. United States, 360 U. S. 343, 345, nor legislatively mandated in this State. Md. Rule 728; McKenzie v. State, 236 Md. 597, 602. Because of appellant’s express disinclination to make any requests beyond Brady, and his failure explicitly to raise the broader question regarding the right of general inspection of prior statements in his brief, we decline to address it here. See Carr v. State, 39 Md. App. 478 (1978).


author: Moylan, J.,

text:
    RICHARD von LUSCH v. STATE OF MARYLAND
    [No. 1069,
    September Term, 1977.]

      Decided June 9, 1978.

      The cause was argued before Morton, Moylan and Couch, JJ.

      Philip W Moore for appellant.

      W. Timothy Finan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, J. Owen Wise, State’s Attorney for Caroline County, and John T Clark, III, Assistant State’s Attorney for Caroline County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Richard von Lusch, felt aggrieved by a form of nuisance wrought initially by Orville and Wilbur Wright but inflicted ultimately upon him as traffic in and out of a local airport flew low over his Queen Anne’s County home. The redress he sought, unfortunately, was by way of invoking another nuisance wrought initially by Alexander Graham Bell and inflicted ultimately upon Julius Grollman, a neighbor of the appellant and a Queen Anne’s County Commissioner responsible in part for the presence of the airport which was the source of the appellant’s chagrin. The protracted zoning dispute which brought the appellant and Mr. Grollman to loggerheads is fully recounted in von Lusch v. Board of County Commissioners of Queen Anne’s County, 268 Md. 445, 302 A. 2d 4, and von Lusch v. Board of County Commissioners of Queen Anne’s County, 24 Md. App. 383, 330 A. 2d 738. The latest chapter of this contretemps was written by a Caroline County jury, presided over by Judge K. Thomas Everngam, which found the appellant guilty of two counts of making repeated telephone calls with intent to annoy and harass in contravention of Article 27, Section 555A. Upon this appeal, the appellant raises essentially four contentions:

1) That Article 27, Section 555A, is unconstitutional;

2) That he should not have been convicted of two separate offenses in that both merge into a single course of repetitive conduct;

3) That the court erroneously declined to give certain jury instructions requested by the appellant; and

4) That pen register evidence was erroneously admitted.

I. The Pen Register Evidence

We deal initially with the contested pen register evidence. A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the phone is released. It does not overhear oral communications and does not indicate whether calls are actually completed. In this case, Leroy Fisher, the Commercial Manager of the Chesapeake and Potomac Telephone Company of Chestertown, testified that the telephone company is a private corporation. He testified that one of C. & P.’s subscribers, Julius Grollman, had complained of receiving harassing telephone calls. Mr. Fisher testified that he ordered his employees to place a pen register upon the appellant’s telephone in order to corroborate the customer’s complaint about having received repeated calls from the appellant. The pen register revealed, inter alia, that 43 calls were placed from the appellant’s telephone to Mr. Grollman’s telephone within a 7-hour period on May 5,1974, one of the dates as to which a conviction was returned. The appellant’s attack upon the pen register is twofold and neither is availing.

A. A Pen Register is Not Covered by Title III

Whatever doubt may once have existed, it is now clear that the purely mechanical act of dialing a particular number as revealed by a pen register is not a “communication” within the contemplation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. This issue was laid finally to rest by the Supreme Court on December 7, 1977, by its decision in United States v. New York Telephone Company, 434 U. S. 159, 98 S. Ct. 364, 54 L.Ed.2d 376. The Supreme Court there pointed out, at 54 L.Ed.2d 386:

“Title III is concerned only with orders ‘authorizing or approving the interception of a wire or oral communication____” ... Congress defined ‘intercept’ to mean ‘the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.’ ... Pen registers do not ‘intercept’ because they do not acquire the ‘contents’ of communications, as that term is defined by 18 USC §2511(8)... Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed — a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed are disclosed by pen registers. Furthermore, pen registers do not accomplish the ‘aural acquisition’ of anything. They decode outgoing telephone numbers by responding to changes in electrical voltage caused by the turning of the telephone dial (or the pressing of buttons on push button telephones) and present the information in a form to be interpreted by sight rather than by hearing.”

See United States v. Giordano, 416 U. S. 505, 553-554, 94 S. Ct. 1820, 40 L.Ed.2d 341 (1974) (concurring opinion by Powell, J., joined in by three other justices). And see also United States v. Illinois Bell Telephone Co., 531 F. 2d 809 (CA7 1976); United States v. Southwestern Bell Telephone Co., 546 F. 2d 243 (CA8 1976); United States v. Falcone, 505 F. 2d 478 (Ca3 1974), cert. denied, 420 U. S. 955, 43 L.Ed.2d 432, 95 S. Ct. 1338, 1339 (1975); Hodge v. Mountain States Telephone and Telegraph Co., 555 F. 2d 254 (CA9 1977); United States v. Clegg, 509 F. 2d 605, 610 n. 6 (CA5 1975). The ultimate holding of the Supreme Court in United States v. New York Telephone Company, 54 L.Ed.2d at 387, could not have been more unequivocal:

“It is clear that Congress did not view pen registers as posing a threat to privacy of the same dimension as the interception of oral communications and did not intend to impose Title III restrictions upon their use.”

B. Fourth Amendment Inapplicability to Priva te Persons or Private Corporations

We will assume, without deciding, that the placing of a pen register upon a telephone and the identification of outgoing calls is a search and seizure within the contemplation of the Fourth Amendment. To bring the conduct within the compass of the Fourth Amendment, however, is not necessarily to bring the actors within the compass of the Fourth Amendment. It is clear that the command of the Fourth Amendment to be “reasonable” is addressed to government as government and not to private persons. This very fundamental threshold question has a way of being frequently overlooked.

The Fourth Amendment is but a part of the Bill of Rights and the entire Bill of Rights is, by definition, a set of limitations upon government as government. To acknowledge that the Bill of Rights is inapplicable for their correction is not to condone private wrongs. There are many mansions in our law and we look to different ones for different redresses. We are protected from each other’s depredations by the traditional substantive law, civil and criminal, which we have erected over the centuries to regulate man’s interrelationships with other men. It was in the very act of ratifying a new social contract in 1788 that we perceived the need for a set of fundamental protections against the proposed new government even as we were already protected against each other by an already venerable substantive law. The Bill of Rights, in response to that felt need, was a set of built-in limitations, of hobbles, upon government as government. The addition of the Fourteenth Amendment to the first ten only lengthened the list of governments whose agents are regulated. The sanction now applies not to the agents of one government but to the agents of fifty-one governments. It is still, however, limited to governmental agents. If it were otherwise, it would cease to be a Bill of Rights and would become a code of substantive law.

This basic truth was recognized initially by the Supreme Court in Burdeau v. McDowell 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048 (1921). In dealing with an unconscionable search and seizure but with one that lay beyond the coverage of the Fourth Amendment, the Supreme Court well articulated the limits of the Bill of Rights in regulating human behavior, saying at 256 U. S. 475:

“The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies ...
In the present case the record clearly shows that no official of the Federal Government had anything to do with the wrongful seizure of the petitioner’s property, or any knowledge thereof until several months after the property had been taken from him and was in the possession of the Cities Service Company. It is manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another.”

The vitality of Burdeau v. McDowell was attested as late as 1971 by Coolidge v. New Hampshire, 403 U. S. 443, 487, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971):

“Had Mrs. Coolidge, wholly on her own initiative, sought out her husband’s guns and clothing and then taken them to the police station to be used as evidence against him, there can be no doubt under existing law that the articles would later have been admissible in evidence. Cf. Burdeau v. McDowell.

On that particular point, Justice Stewart spoke for a unanimous Supreme Court. See also United States v. Goldberg, 330 F. 2d 30 (3d Cir. 1964); United States v. McGuire, 381 F. 2d 306 (2d Cir. 1967); United States v. Mekjian, 505 F. 2d 1320 (5th Cir. 1975). This fundamental principle was recognized by this Court in Herbert v. State, 10 Md. App. 279, 269 A. 2d 430 (1970), speaking through Judge Orth at 10 Md. App. 284-285:

“We believe that by history, judicial rule and application, the exclusionary rule as to evidence seized in violation of the Fourth Amendment comes into play only when the evidence is obtained by governmental action. Whatever wrong is done by the act of one individual in taking the property of another, it is no invasion of the security afforded by the Fourth Amendment against unreasonable searches and seizures. Burdeau v. McDowell---When an individual obtains incriminatory matter from an accused, no matter how improperly, and such matter comes into the possession of the government without a violation of the accused’s rights by governmental authority, the exclusionary rule does not prohibit its use at trial.”

In this case, it was undisputed that the Chesapeake and Potomac Telephone Company was a private corporation. A complaint was lodged with that corporation by one of its subscribers. In response to that complaint, Leroy Fisher, the Commercial Manager of the corporation, ordered that the pen register be placed on the appellant’s telephone. The placing of the pen register was already fait accompli long before any investigative arm of the sovereignty became remotely aware of its existence. There was simply no “state action” such as is required even to engage the gears of the Fourth Amendment, the Fourteenth Amendment or the Exclusionary Rule.

II. The Constitutionality of Section 555A

Article 27, Section 555A, provides:

“It is unlawful for any person to make use of telephone facilities or equipment... (2) for repeated calls, if with intent to annoy, abuse, torment, harass, or embarrass one or more persons;”

The appellant recognizes as he must that this statute is facially constitutional. In Caldwell v. State, 26 Md. App. 94, 337 A. 2d 476, Judge Thompson thoroughly analyzed the section and explicitly found it to be constitutional. He pointed out how the specific intent “to annoy, abuse, torment, harass, or embarrass” saved the statute from any danger of being “void for vagueness.” The appellant now attempts to engraft onto the statute an additional requirement that the intent “to annoy, etc.” be the “sole” intent possessed by the telephoning party. The language of the statute does not contain such an additional requirement and the definitive interpretation of the intent requirement in Caldwell r. State, supra, does not hint at such an additional requirement. The one case cited by the appellant of United States v. Darsey, 342 F. Supp. 311 (E.D. Pa. 1972), is of no assistance in interpreting our statute. The Darsey case, to be sure, refers to the fact that in the case before it the repeated phone calls must be made “solely to harass.” Darsey, however, dealt with a conviction under United States Code, Title 47, Section 223(l)(d), where the statutory language itself required that the harassing phone calls of an interstate nature be placed by one who “makes repeated telephone calls... solely to harass any person at the called number.” The statutory limitation dealt with in that case is simply not present in the Maryland statute.

The appellant makes the additional argument that Caldwell v. State to the contrary notwithstanding, Section 555A is unconstitutional because of the chilling effect it may have upon the First Amendment. The argument misperceives the values protected by that amendment. The right to express ideas does not include the right to impose the communication of those ideas upon an unwilling listener. Cantwell v. Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). The Maryland statute does not prohibit speech or communication as such. It simply protects one from the harassment and annoyance of having his own telephone used in an abusive fashion by an unwanted intruder upon his privacy. Citizens have a right to speak. Citizens also have a right not to be forced to listen. Freedom of speech does not encompass the right to abuse the telephone with the specific intent to annoy and to harass the recipient of the call. Caldwell v. State, supra.

III. Do Two Convictions Constitute Double Jeopardy?

The appellant takes umbrage at having been convicted upon two counts — charging violations of the statute on May 5 and May 11 respectively — rather than upon a single count. The appellant points out, quite properly, that under the statute, each individual call is not a distinct offense. The statute is aimed rather at a pattern of “repeated calls.” What he fails to perceive is that even patterns (each embracing a complex of individual calls) may be in the plural. The evidence here was legally sufficient to establish one pattern of repetitive calls on May 5 and again a distinct and separate pattern of repetitive calls on May 11.

The appellant made a distinct flurry of calls on May 5. Forty-three calls were placed within a seven-hour period. Ten of them actually reached Mr. Grollman. The appellant admitted that he dialed Mr. Grollman 43 times on May 5. He would announce to Mr. Grollman the time of day and would then “yell” out, “Flight overhead.” The appellant admitted that he knew that Mr. Grollman had a heart condition and that he (the appellant) “had hoped to wear him down.”

A distinct episode occurred on May 11, six days later. The calls were made on weekends. The appellant did not bother to see Mr. Grollman personally even though he lived but a block and a half away. He did not call Mr. Grollman at the Commissioner’s Office in the Court House during the working week. The May 5 calls were all made to Mr. Grollman’s residence. The May 11 calls were made to Mr. Grollman at the store which adjoined his home. On May 11, fourteen calls were received by Mr. Grollman in one 25-minute period.

The episodes were distinct and we perceive no error.

IV. Jury Instructions

The jury instructions actually given adequately and fairly set forth the applicable law. That is all that is required. Bartholomey v. State, 260 Md. 504, 532, 273 A. 2d 164. The appellant had no right to the exact language (much of it slanted, rhetorical and argumentative) of his requested instructions. England v. State, 21 Md. App. 412, 320 A. 2d 66; Nelson v. State, 5 Md. App. 109, 245 A. 2d 606.

Judgments affirmed; costs to be paid by appellant.

      . 18 United States Code, §§ 2510-2520.