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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. Richards, 369
Supreme Judicial Court of Massachusetts,
Argued
Decided
Robert H. Deaderick, Jr.,
Roxbury, for defendants.
Kathleen M. Curry, Asst. Dist. Atty., for the
Commonwealth.
Before [369
HENNESSEY, Justice.
The three
defendants were found guilty on all complaints, after trial before a judge of
the Municipal Court of the City of
The
defendants appealed, and the appeals were tried before a judge with jury in the
jury of twelve session of the Municipal Court of the City of
[369
The
defendants are before this court on a bill of exceptions. G.L. c. 278, s
31. The defendants argue that it was
error for the judge to deny their motions to dismiss and for directed verdicts
as to all complaints. As to the
disorderly person complaints in particular, they argue that G.L.
c. 272, s 53, is unconstitutional because of vagueness and overbreadth. They also argue that it was error to deny
their motions that a stenographer be appointed and that they be supplied a free
transcript of the proceedings. We
conclude that there was no error.
[1]
1. We turn first to the claim, as raised
by the defendants' motions to dismiss the complaints, that the 'disorderly
persons' provision of G.L. c. 272, s 53, is
unconstitutionally vague. We recently
upheld this statutory provision against a claim of unconstitutional vagueness
in Commonwealth v. A Juvenile, ‑‑‑ Mass. ‑‑‑,
‑‑‑, ([FNA]) 334 N.E.2d 617
(1975). We reaffirm that holding
now. There is no necessity to repeat
here our extended reasoning as stated in that case. Id. at ‑‑‑ ‑ ‑‑‑,
([FNB]) 334 N.E.2d 617. Suffice it to say, we concluded that as
reaching to conduct (other than expressive conduct) the 'disorderly persons'
provision is not vague. Id. at ‑‑‑,
([FNC]) 334 N.E.2d 617. We recognized that the statutory phrase would
be unconstitutionally vague, except for this court's authoritative construction
in Alegata v. Commonwealth, 353 Mass. 287, 304, 231
N.E.2d 201 (1967).
In the Alegata case we engrafted onto s 53 the Model Penal Code
definition of the offense of disorderly conduct (Model Penal Code s 250.2
(Proposed Official Draft, [369 Mass.
446] 1962)), and, with this
additional definitional content, held that the statute charges an offense which
is not void for vagueness. Section 250.2
of the Model Penal Code, after a preface which merely defines the requisite
intent to commit a criminal act specifies that a person is guilty of disorderly
conduct who '(a) engages in fighting or threatening, or in violent or
tumultuous behavior; or . . . (c) creates a hazardous or physically offensive
condition by any act which serves no legitimate purpose of the actor.' ([FN1])
2. We turn next to the defendants' assertions,
as raised by their motions for directed verdicts, that assuming
constitutionality of G.L. c. 272, s 53, the evidence
did not warrant their convictions as disorderly persons.
We
summarize the evidence most favorable to the Commonwealth as introduced in the
Commonwealth's case in chief prior to resting its case, at which time the
defendants' motions for directed verdicts were denied.
During the
afternoon commuter rush hour of March 4, 1974, about 4:50 P.M., Boston police
officers Donald Locke and Robert Hurley went to the Copley Square Mall in
response to a complaint from the custodian of a nearby commercial
building. Congregrated
about the crowded mall were groups of people, some of whom were drinking alcoholic
beverages. The officers placed one
person who had been drinking under arrest.
Officer Locke then went to two or three of the groups and requested that
they stop drinking or be placed under arrest.
Isaac Richards, who persisted in drinking on the mall, was informed by
Officer Locke that he had been [369
Mass. 447] warned to stop drinking
and leave the area, and that since he had not done so, he was now under arrest.
When the
officer attempted to make the arrest, the defendant Isaac Richards kept pulling
away from Officer Locke and jerking his arm away. As Richards continued to resist arrest, he
called Officer Locke a 'mother f_ _'
and told him he was like the 'f_ _ pigs
in Rhode Island.' A crowd began to
surround Officer Locke.
Halfway to
the police cruiser Officer Hurley came to Officer Locke's assistance. When they got Isaac Richards to the sidewalk,
James Richards, his brother, began punching Officers Locke and Hurley about the
head, shoulders, and back. James
Richards yelled at the officers as he struck them, 'You mother f_ _ white pigs, let go of my brother they're
taking my brother, let him go, he didn't do nothing.' As James continued to punch the officers and
yell obscenities, the crowd which was gathering became hostile and abusive
toward the police. About 200 persons had
congregated. They bombarded Officers
Locke and Hurley with bundless of newspapers, books,
and other debris. During this time Isaac
Richards kept falling down as the officers attempted to bring him to the police
cruiser. On reaching the cruiser Isaac
resisted being placed inside by placing his hands on the roof of the
cruiser. Within a few minutes after
Officers Locke and Hurley had reached the cruiser with Isaac, other police
officers arrived on the scene, pursuant to an 'officer in trouble' call. Officer Hurley then let go of Isaac and
assisted other officers in subduing James Richards. James and Isaac were taken to a waiting police
wagon. As the officers attempted to
place Isaac in the wagon, he kicked Officer Locke in the arm, causing Locke to
fall back against Officer Peter Dougherty who was assisting Locke with
Isaac. At the time Isaac and James were
being placed in the police wagon, Officer Cardinal was standing near the wagon
when his attention was drawn to the defendant Ocie
Elder. Elder said to Cardinal: 'What are
you arresting them for, why don't [369
Mass. 448] you arrest me, you don't
have any b_ _, I'll kill you, I'll break
you in two.' Cardinal responded, '(I)f
you don't behave yourself, you're going to be arrested also.' Elder suddenly lurched out of the crowd and
struck Cardinal on the mouth with his fist.
The officer received soreness in his mouth and also had a partial plate
cracked by the blow. Officer Robert Saitta, who grappled with Elder, was bitten in the chest by
Elder.
[2]
Entirely aside from any constitutionally protected speech or expressive
conduct, it is patently clear that there was evidence that each of the
defendants was guilty of being disorderly within the meaning of s 53, as we
have construed it. All three defendants
engaged in 'fighting' and in 'violent or tumultuous behavior.' All of this conduct in the existing
circumstances, which showed all three defendants resisting arrest in the midst
of a crowd which was hostile and abusive to the police, could clearly be found
to have been done with the requisite criminal intent.
[3] There
is no merit to the defendants' assertion that directed verdicts should be
ordered because of the many inconsistencies in the testimony of witnesses
introduced by the Commonwealth. The contention is that an inference should
have been drawn of perjury, or police conspiracy. It is true that many inconsistencies appear
in the record. Nevertheless, considering
the privilege of the jury to use selectively their power to determine the
credibility of witnesses, and considering also that there was ample evidence
(if believed) to support the jury verdicts, the defendants' argument fails.
[4]
3. The defendants, by their motions to
dismiss the complaints and their motions for directed verdicts, as well as
memoranda of law filed with the trial judge, seasonably raised the issue that
the disorderly person provision of s 53 cannot constitutionally be the basis
for criminal conviction for the use of protected speech and expressive conduct,
even if that speech and conduct may be considered as offensive and
abusive. We so held in [369 Mass. 449] Commonwealth v. A Juvenile, ‑‑‑ Mass. at ‑‑‑
‑ ‑‑‑, ([FND]) 334 N.E.2d 617
(1975). It is true that there was
evidence of offensive and abusive language addressed by the defendants to the
police. However, no error has been shown
here in the denial of the various motions.
We have
concluded above that there was evidence that all three defendants engaged in
fighting and violent or tumultuous behavior, and that convictions under s 53
based on such evidence are constitutionally valid. ([FN2])
It has not been shown in the record before us that the jury were
permitted to consider speech or expressive conduct as evidence of criminal
conduct. The judge's charge to the jury
is not included in the bill of exceptions.
([FN3]) Neither did the
defendants offer pertinent requests for jury instructions, ([FN4]) or take any
exceptions to the charge, so far as appears.
Essentially
then, the defendants now ask this court to assume that the judge charged the
jury incorrectly. This we decline to
do. Since there was evidence that the [369 Mass. 450] defendants engaged in fighting and violent or tumultuous
behavior, entirely apart from any speech of theirs, the judge could
appropriately submit the s 53 complaints to the jury with instructions, inter alia, that the speech of the defendants was not to be
considered as evidence of guilt. For all
that appears, the judge so instructed the jury.
If we were to hold on this record that error under the First Amendment
has been shown, it would amount to a conclusion that, merely because the
violent conduct of the defendants was accompanied by speech, no conviction of
the defendants as disorderly persons was permissible. Such a conclusion would be wrong, since we
have construed s 53 as constitutionally valid so long as it does not reach
protected speech and expressive conduct.
In
attempting to discern whether the speech of the defendants was considered by
the jury as evidence of guilt, we see no significance in the fact that verdicts of
not guilty were returned on the assault and battery complaints as to two of the
defendants, Isaac Richards and James Richards.
For example, the jury may well have decided to consider the fighting of
these two defendants only as it related to the disorderly person complaints
against these defendants. For all that
appears, they may possibly have regarded that reasoning as mandatory under the
judge's charge. In any event, we see no
inference arising from a consideration of all the verdicts that any conviction
was premised on speech. Nor is it
significant that the third defendant, Ocie Elder, was
found guilty on both a disorderly person complaint and an assault and battery
complaint. There was evidence that he
used force and violence against two of the officers, and the jury may have
premised its separate results on the two separate episodes.
[5][6]
4. There was no error in the denial of
the motion for a directed verdict by the defendant Elder as to the complaint
which charged assault and battery against Officer Saitta. There was evidence that Elder bit Saitta in the chest.
Nor was there error in the denial of the motion [369 Mass. 451] for a
directed verdict addressed to the complaint for drinking in public against the
defendant Isaac Richards, since the evidence warranted the jury verdict of
guilty.
[7][8]
5. There was no error in the denial of
the defendants' motions, filed at the beginning of the trial, for appointment
of a stenographer and the supplying of a stenographic transcript to the
defendants at public expense. See
Commonwealth v. Roberts, 362 Mass. 357, 368‑‑369, 285 N.E.2d 919
(1972); Commonwealth v. Britt, 362 Mass. 325, 331‑‑332, 285 N.E.2d
780 (1972). But cf. Blazo
v. Superior Court, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑, ([FNE]) 315 N.E.2d 857
(1974). ([FN5]) The defendants were permitted to record the
trial on tape using equipment provided by defense counsel. See Rule 52 of the Rules of the Municipal
Court of the City of Boston for Civil Actions (1952), as amended March, 1973
(now Rule 15 of the Rules of the Municipal Court of the City of Boston for
Criminal Business, as amended, effective July 1, 1975). No error arises merely because subsequent
events show that the recording, for whatever reason, apparently was defective
in places.
Exceptions
overruled.
(FN1.)
Of the companion cases two are against Isaac Richards and two are
against Ocie Elder.
(FNA.) Mass.Adv.Sh. (1975)
2766, 2776.
(FNB.) Mass.Adv.Sh. (1975)
at 2788‑‑2794.
(FNC.) Mass.Adv.Sh. (1975)
at 2776.
(FN1.)
Subsection (b) of s 250.2, omitted above, provides that a person is
disorderly who '(b) makes unreasonable noise or offensively coarse utterance,
gesture or display, or addresses abusive language to pay person present.' This court no longer relies on subsection (b)
in defining a disorderly person by reason of the unconstitutional overbreadth of this provision in reaching speech and
expressive conduct. Commonwealth v. A
Juvenile, supra at 617 (Mass.Adv.Sh. (1975) at 2776‑‑2788), 334 N.E.2d
617.
(FND.) Mass.Adv.Sh. (1975)
at 2776‑‑2788.
(FN2.)
The defendants challenge the holdings of the Alegata
case, supra, even though we have subsequently narrowed the relevant law by our
holdings in Commonwealth v. A Juvenile, supra.
The defendants contend that the term 'violent or tumultuous behavior' is
unconstitutionally vague, and that the term 'threatening' is both vague and
overbroad. We need not deal with these
contentions, since it was shown that all defendants were also engaged in
'fighting.'
(FN3.)
Nor is there a showing that the failure to bring the charge before us is
related to the judge's denial of the defendants' motions to have a stenographer
appointed and free transcript provided (see pt. 5 of this opinion, infra). Even without such a transcript, it would be a
simple matter to focus in the record the judge's treatment of this issue in his
instructions to the jury. We observe
also that interlocutory instructions by the judge on evidentiary points are
included in the bill of exceptions verbatim.
(FN4.)
Not that the defendants would be required to offer such requests for
instructions in order to protect their rights under the First Amendment to the United
States Constitution; we merely comment here that if such requests had been
filed and denied, it would be some clue to the instructions which the jury
received.
(FNE.) Mass.Adv.Sh. (1974)
1325, 1334‑‑1338.
(FN5.)
We observe that the instant case was tried before the date of issuance
of the Blazo decision, and therefore the
recommendations of that opinion were not available to the trial judge here.