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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Mulvey,
Present: Brown,
The case was tried before Thomas F. Sullivan, Jr., J.
Joseph
Mulvey, pro se.
Anne S. Kennedy, Assistant District Attorney, for the Commonwealth.
COHEN, J.
When three members of the
1. The evidence. Taking the evidence in the light most favorable to the
prosecution, see Commonwealth v. Latimore, 378
The defendant's mother's property was set back
off the road and was surrounded by a variety of different types of fencing.
There was a seventy-five to 100 foot long driveway between the road and the
house. Entry to the driveway was through a large gate, composed of eight foot
high chain link fencing. Green slats had been threaded through the chain link,
making it difficult to see through.[2]
Before Sergeant Boss arrived, Officers Kennedy and Hassett waited "right
outside the gate." The only testimony relating to the public or private character
of this location was Officer Kennedy's testimony that he was not sure if the
gate to the fence was "right on" the public way.
From their vantage point at the gate, the two officers watched the defendant
walk back and forth and heard him shouting that they should leave his property;
however, because of the green slats in the fencing, it was hard for them to see
the defendant at all times. Officer Kennedy estimated that, on average, the
defendant was approximately thirty feet away, and was never closer than twenty
feet from where the officers stood. Officer Kennedy noticed that the defendant
was "animated," "upset," and "red in the face."
When Sergeant Boss arrived, he, too, observed
the defendant yelling and pacing. He attempted to persuade the defendant to
come out; but when these efforts were unavailing, Sergeant Boss proceeded up
the driveway by going through a gap in the gate that was wide enough to admit a
person, but not a car. He tried to hand the defendant the restraining order,
but the defendant refused to take it.[3] The defendant then put his
hands behind his back and shouted that the sergeant should get off the
property. Finally, with his hands behind his back, the defendant walked quickly
towards Sergeant Boss and bumped into him.[4] Thinking that the
defendant might hit him, Sergeant Boss grabbed one of the defendant's arms. At
that point, the other two officers came up the driveway, restrained the
defendant, and placed him under arrest.
According to Sergeant Boss, when the defendant
made contact with him, they were fifty feet from the house -- halfway up the
driveway. Sergeant Boss opined that the arrest was effectuated in the lefthand
corner of the property, about fifteen feet from the rear door of the house.
Officer Kennedy placed the arrest somewhat closer to the road, at about thirty
feet from the gate. The only person present during any part of the incident,
other than the defendant and the officers, was the defendant's mother, who
stood off to the side (on her own property) as the defendant was arrested.
2. Discussion. The statute authorizing
prosecutions for disorderly conduct, G. L. c. 272, § 53,[5]
has been saved from constitutional infirmity by incorporating the definition of
"disorderly" contained in § 250.2(1)(a) and (c) of the Model
Penal Code (1980).
The public element of the offense is readily met
in cases where the proscribed conduct takes place on public streets, see
Commonwealth v. Mulero, 38 Mass. App. Ct. 963, 963-964 (1995); or by the side
of a highway, see Commonwealth v. Bosk, 29 Mass. App. Ct. 904, 906-907 (1990).
It also may be satisfied where the disturbance takes place in a more secluded
environment, but only if members of the public are likely to be affected.
Whether the disturbance itself occurs on publicly owned property is not
dispositive. The public element may be satisfied where the actor's conduct
takes place on private property that is frequented by the public, such as
stores, apartment houses, or theaters. See Model Penal Code § 250.2
comment 2, at 329. See also Commonwealth v. Carson,
Here, the defendant's conduct took place on purely private property. Thus, in
order to satisfy the public element of the crime, the Commonwealth was required
to establish that the disturbance nevertheless had or was likely to have had an
impact upon persons in an area accessible to the public. This it did not do. As
it stood at the end of the Commonwealth's case,[8] the actions that
precipitated the defendant's arrest took place thirty to fifty feet up the
driveway, shielded from off-premises view by the partially opaque fence. There
was no evidence that a crowd, inquisitive neighbors, or passersby actually saw
or heard the disturbance. Nor was there any evidence to establish that people
could have seen or heard the defendant from any place of public access, such as
a nearby sidewalk, publicly used path or road, shopping area or other
neighborhood facility.
We disagree with the Commonwealth that the public element was established by
the fact that Officers Kennedy and Hassett observed the disruption. The
officers' presence, alone, did not suffice to prove the public element,
regardless of any concern they may have felt as they witnessed the defendant's
confrontation with Sergeant Boss. As recognized in the commentaries to the
Model Penal Code, behavior that has an impact only upon members of the police
force is significantly different from that affecting other citizens in at least
two respects: it is an unfortunate but inherent part of a police officer's job
to be in the presence of distraught individuals; and, to the extent that the
theory behind criminalizing disorderly conduct rests on the tendency of the
actor's conduct to provoke violence in others, "one must suppose that
[police officers], employed and trained to maintain order, would be least
likely to be provoked to disorderly responses." Model Penal Code
§ 250.2 comment 7, at 350. Accordingly, police presence in and of itself
does not turn an otherwise purely private outburst into disorderly conduct.[9]
To use the officers' presence as evidence of the encounter's potential public
impact, the Commonwealth would have had to prove that the spot from which they
peered through the gate was a place to which the public had access. This it
failed to do. But even if the officers' vantage point had been shown to be in
an area accessible to or frequented by the public, we question whether there
was a significant likelihood of public impact, given the physical barrier of
the slatted gate and the defendant's distance from it some thirty to fifty feet
away. In sum, on the facts presented, the defendant's conduct could not be
found to have created the substantial and unjustifiable risk of public nuisance
that is the sine qua non of the offense.
3. Disposition. As the defendant was entitled to an acquittal under his motion
for a required finding of not guilty, the judgment of conviction is reversed,
the verdict is set aside, and judgment is to be entered for the defendant.
So ordered.
FOOTNOTES:
[1] At trial, the defendant claimed that the
restraining order was invalid and that eventually it was withdrawn. For present
purposes, however, the fate of the order is irrelevant. We assume that the
officers were attempting to serve the defendant with a valid order, or one that
was proper on its face, and that they could enter private property to do so.
See Nolan & Sartorio, Tort Law § 176, at 297-298 (2d ed. 1989);
Restatement (Second) of Torts §§ 208, 209 (1965). We need not consider whether
in-hand delivery to the defendant was, as the officers appear to have believed,
the only proper means of serving a New Hampshire restraining order.
[2] It is not clear from the record whether the
entire fence had been fitted this way or just the gate area.
[3] At this point, it might have been the better part
of valor for Sergeant Boss simply to announce the nature of the order and leave
it in the vicinity of the defendant. Effectuating in-hand service upon a
recalcitrant individual does not require more. Although
[4] The defendant's version of events, established
through his testimony and that of his mother, was that because his family had a
poor relationship with the local police, he deliberately put his hands behind
his back to avoid a confrontation; he continually backed up as Sergeant Boss
approached him; and it was Sergeant Boss who made contact with him when Boss
tripped and stumbled.
[5] The statute reads: "Common night walkers,
common street walkers, both male and female, common railers and brawlers,
persons who with offensive and disorderly acts or language accost or annoy
persons of the opposite sex, lewd, wanton and lascivious persons in speech or
behavior, idle and disorderly persons, disturbers of the peace, keepers of
noisy and disorderly houses, and persons guilty of indecent exposure may be
punished by imprisonment in a jail or house of correction for not more than six
months, or by a fine of not more than two hundred dollars, or by both such fine
and imprisonment." G. L. c. 272, § 53.
[6] The application of Model Penal Code
§ 250.2(1)(c) is restricted to cases not involving protest or other
expressive activities.
[7] The public element also has been engrafted onto
the "lewd, wanton and lascivious" offense of § 53.
[8] During the defendant's case, the defendant's
mother testified that the road on which her property fronted was a secluded,
country road; that her place was isolated; and that no matter how she might
scream, no one would hear her. She also testified, however, that youngsters
from town would come around to harass them, and that before the fencing was put
up a gang of "punks" would come by "night after night."
[9] Commonwealth v. Collins,