|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Sholley, 432
Supreme Judicial Court of Massachusetts,
Argued
Decided
John J. Amendolare,
Patrick C. Lee, Special Assistant District Attorney,
for the Commonwealth.
Present
SOSMAN, J.
Earl
Sholley was convicted of threatening to commit a crime (G.L. c. 275, § 2),
being a disorderly person (G.L. c. 272, § 53), and disrupting court proceedings
(G.L. c. 268, § 13C). The Appeals Court
affirmed the conviction of threatening to commit a crime, but reversed the
conviction of being a disorderly person (on the ground that the defendant's
conduct did not come within the ambit of G.L. c. 272, § 53) and the conviction
of disrupting court proceedings (on the ground that there was no evidence that
any particular proceeding had been disrupted). Commonwealth v. Sholley, 48
Mass.App.Ct. 495, 504, 726 N.E.2d 415 (2000).
We granted the parties' applications for further appellate review. We affirm the convictions of threatening to
commit a crime and being a disorderly person and reverse the conviction of
disrupting court proceedings.
1. Facts.
At the time of the incident giving rise to these convictions, Earl
Sholley was active in an organization dedicated to "fathers'
rights." This organization was
critical of what it viewed as the court system's unfair treatment of fathers
and husbands in domestic relations and domestic violence cases. Sholley and other members of the group had
expressed their criticism by various methods, including demonstrations and
leafletting in the vicinity of the Quincy Division of the District Court
Department.
Prosecutions
of domestic violence cases in the Quincy District Court were conducted
principally by Assistant District Attorney Courtney Cahill, and some of
Sholley's protest activities had specifically targeted Cahill as the prosecutor
responsible for what he and his organization perceived as unfair verdicts and sentences. Cahill was aware of Sholley's involvement in
the demonstrations protesting her work on such cases and was aware of Sholley's
passionate views on the subject.
On June 24
and 25, 1996, Raymond Barrio was being tried in the Quincy District Court on a
charge of violating a restraining order.
Cahill was prosecuting the case.
Sholley and his organization supported Barrio and viewed his trial as
another example [432
After the
proceedings had concluded, Sholley arrived and looked into the court room, located
on the second floor of the court house.
The court officer, Kirk Parks, came out to see what Sholley wanted. Sholley asked Court Officer Parks what had
happened to the Barrio case, and Parks informed Sholley of the verdict and sentence. On hearing that Barrio had been sent to jail,
Sholley began shouting and yelling in a manner that Parks described as
"out of control." (FN2) When Parks asked Sholley to keep his voice
down, Sholley yelled even more loudly in a tone of voice that witnesses
described as "screaming."
Parks
directed Sholley to leave the building.
Sholley proceeded to run through the corridor and down the stairway,
still yelling and screaming, followed by Parks.
(FN3) As Sholley reached the top
of the stairs, he shouted, "This means war! There's going to be bloodshed all over the
streets!" Sholley yelled out this
particular exclamation several times.
When
Sholley's outburst started, Cahill was on the first floor of the court house
handling bails and arraignments in the first session. She was at the door in front of the first
session court room speaking with another attorney when she heard what she
described as "a huge commotion upstairs." She had supervisory responsibility over
other assistant district attorneys and, on hearing this "huge
commotion," Cahill's assessment was that she "needed to go upstairs
and make sure that everything was okay with the other [assistant district
attorneys]." Accordingly, she
broke off her discussion with the attorney and started up the stairway to the
second floor.
[432 Mass. 724] Sholley was running down the stairs as Cahill was climbing
up. When he encountered Cahill on the
stairway, Sholley stopped, pointed his finger at Cahill's face, and yelled,
"Watch out, Counselor."
Cahill testified that Sholley was "[i]nches" from her at the
time and that this remark was yelled "in an angry tone." Cahill recognized Sholley from his prior
protest activities and knew that he had been at the court house the previous
day to support Barrio. She testified
that she was "extremely frightened" by Sholley's statement and
gesture and that she continued up the stairs "to get away from him."
Meanwhile,
others in the court house also responded to this commotion. When Sholley's yelling began, Parks saw people
"peeking out" of offices and out of the other second‑floor
court room, apparently trying to see what was happening. On the first floor, various people came
rapidly out of the first session court room and stopped to watch Sholley. Others came out of the first floor probation
office.
Detective
Barbara DiNatale, a police prosecutor, was going down the stairs when Sholley
ran past her "screaming" about "war" and
"bloodshed." She "pursue
[d]" him outside. Three other
police officers, who had been at the court house to testify in other
proceedings, also responded and followed outside with Detective DiNatale and
Court Officer Parks. (FN4)
Once
outside the court house, Sholley began passing out his group's literature. He approached a court employee who was
outside on her break and insisted that she take the materials he was handing
out. When she refused, he said,
"Remember what happened in Oklahoma.
This is a bomb ready to explode."
The employee was frightened by Sholley's remark.
Detective
DiNatale then spoke to Sholley, advising him that she could arrest him and
asking him to leave the area. After a
brief conversation with DiNatale, during which Sholley asked DiNatale what he
had done that was disorderly and DiNatale related to him the conduct she had
observed that she considered disorderly, Sholley proceeded up the street to
Quincy Square, where he continued handing out leaflets.
The total
time elapsed, from the commencement of Sholley's yelling to his departure from
the area, was two to three minutes.
[1][2] 2. Threatening to commit a crime. "The elements of threatening[432 Mass. 725] a crime include an
expression of intention to inflict a crime on another and an ability to do so
in circumstances that would justify apprehension on the part of the recipient
of the threat." Commonwealth v. Robicheau, 421 Mass. 176,
183, 654 N.E.2d 1196 (1995). Sholley
argues that the only words he directed at Cahill (i.e., the phrase, "Watch
out, Counselor") do not express any intent to commit a crime. Thus, he contends that he was entitled to a
required finding of not guilty on the threats charge.
[3] The
assessment whether the defendant made a threat is not confined to a technical
analysis of the precise words uttered.
Rather, the jury may consider the context in which the allegedly
threatening statement was made and all of the surrounding circumstances. For example, in Commonwealth v. Elliffe, 47 Mass.App.Ct. 580, 582, 714 N.E.2d 835
(1999), the victim had brought parental kidnapping charges against her former
husband. As the kidnapping case was
progressing, the victim claimed that the defendant had come to her house,
assaulted her, and told her in an angry voice, "Drop the charges." Id.
at 581‑582, 714 N.E.2d 835. The
defendant argued that there was nothing threatening in the words, "Drop
the charges." Id. at 583, 714 N.E.2d 835. Noting that the words were to be viewed
"in the context of the actions and demeanor which accompanied them,"
the Appeals Court held that the evidence was sufficient to make out a case of
threatening to commit a crime. Id. at 582, 714 N.E.2d 835. Similarly, in Commonwealth v. Strahan, 39 Mass.App.Ct. 928, 657 N.E.2d 234
(1995), the defendant, a known environmental activist who had been protesting
whale‑watching excursions, was asked by the ship's mate to step down off
the gangplank of a whale‑watching boat.
The defendant replied that he was "assessing the enemy" and
that he was "just looking for, for a place to put a hole in the
boat." Id. at 929, 657 N.E.2d 234. The Appeals Court rejected the defendant's
technical "parsing" of his words, opining that the words should not
be "taken in isolation from his other statements and the context in which
they were made." Id. See Commonwealth v. DeVincent, 358 Mass. 592, 595, 266 N.E.2d 314
(1971) (in prosecution of attempted extortion, issue whether defendant's
statement constituted threat of bodily injury not governed by "the
dictionary definition of the words used" or by their meaning "in the
abstract" but rather was to be viewed in light of "the circumstances
attending their use" and "context").
[4] Here,
the context of the defendant's statement, along with his demeanor and tone of
voice at the time the statement was made, would permit the jury to conclude
that the statement was [432 Mass.
726] intended as a threat. Based on his belief that Barrio had been
wrongly convicted and unjustly imprisoned a second time, Sholley was enraged at
the court system when he encountered Cahill, the prosecutor who was, in
Sholley's view, responsible for this ostensible miscarriage of justice. He was "yelling" and
"screaming" in an angry tone of voice, he had just been crying out a
prediction of "war" and "bloodshed," and he stood only
inches from Cahill pointing his finger in her face. In that context, the advice to "[w]atch
out" may be interpreted as an expression of an intention to harm
Cahill. (FN5) Cahill testified that is how she understood
the remark, characterizing it as a warning that she should "watch [her]
back." She also testified that she
was "extremely frightened" as a result, and, given the context of the
statement and the defendant's demeanor at the time, the jury could conclude
that her fear was reasonable and justifiable.
Sholley
also argues that his statement to Cahill constituted mere "political
hyperbole" uttered as part of his criticism of the court system's handling
of domestic violence cases and that, as such, it was speech protected by the
First Amendment to the United States Constitution and art. 16 of the Declaration
of Rights, as amended by art. 77 of the Amendments to the Massachusetts
Constitution. He likens himself to the
draft protester in Watts v.. United
States, 394 U.S. 705, 706, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), whose
announcement at a rally that, if drafted and forced to carry a rifle, "the
first man I want to get in my sights is L.B.J.," was held to be protected
speech, not a criminal threat to kill the President. (FN6)
[5][6]
"[T]he First Amendment does not protect conduct that threatens
another." Commonwealth v. Robicheau, 421 Mass. 176,
183, 654 N.E.2d 1196 (1995). See United States v. Fulmer, 108 F.3d 1486,
1492‑1493 (1st Cir.1997) ("a true threat is unprotected by the [432 Mass. 727] First Amendment").
The free speech issues concerning the offense of threatening to commit a
crime are resolved by defining the elements of the crime in a way that prevents
a conviction based on protected speech.
See Robinson v. Bradley, 300
F.Supp. 665, 668‑669 (D.Mass.1969) (dismissing action seeking to enjoin
enforcement of G.L. c. 275, §§ 2 et seq., where likely interpretation of the
statute would satisfy First Amendment).
By limiting the crime of threats to those cases where the defendant
expresses an intention to inflict a crime on another, has the ability to carry
out that crime, causes the victim to fear harm, and does so in circumstances
that make the victim's fear justifiable, the offense of threatening to commit a
crime only reaches cases of "true threats" that would not qualify as
protected speech. Where, as here, the
evidence was sufficient to satisfy each element of the crime, there is no
violation of Sholley's First Amendment or art. 16 rights.
3. Disorderly person. Sholley contends that his conduct was not
"disorderly" within the meaning of G.L. c. 272, § 53. The interpretation of the term
"disorderly" for purposes of § 53 has had a "tortured
history" in our jurisprudence,
Commonwealth v. Feigenbaum, 404 Mass. 471, 473‑474, 536 N.E.2d 325
(1989), driven principally by the difficulties of defining the offense in a way
that avoids any infringement of free speech rights. Having initially avoided a vagueness
challenge by adopting the definition of "disorderly conduct" set
forth in the Model Penal Code § 250.2(1) (Proposed Official Draft, 1962), (FN7) Alegata
v. Commonwealth, 353 Mass. 287, 304, 231 N.E.2d 201 (1967), we later ruled
that subsection (b) of that Code provision was unconstitutionally overbroad in
its potential application to protected speech, Commonwealth v. A Juvenile, 368 Mass. 580, 587‑595, 334
N.E.2d 617 (1975). More recently, in Commonwealth v. [432 Mass. 728] Feigenbaum, supra at 475, 536 N.E.2d
325, we held that, under subsection (c) of § 250.2, a defendant whose creation
of a hazardous or physically offensive condition occurred as part of a
political protest could not be convicted under G.L. c. 272, § 53, as the
Commonwealth had failed to show that the conduct served "no legitimate
purpose of the actor." What now remains
of the definition of "disorderly" conduct is subsections (a) and (c)
of § 250.2 of the Model Penal Code, with any application of subsection (c)
restricted to cases not involving protest or other expressive activities (as
required by the Feigenbaum
decision). Sholley contends that his
outburst in the court house corridor was part of his political protest against
the unfair prosecution of husbands and fathers and that, under the Feigenbaum analysis, G.L. c. 272, § 53,
does not proscribe such conduct.
[7][8] The
Commonwealth contends, correctly in our view, that Sholley's conduct comes
within subsection (a) of § 250.2 of the Model Penal Code, which covers a
defendant who, with the requisite intent to cause public inconvenience,
annoyance or alarm, "engages in fighting or threatening, or in violent or
tumultuous behavior." (FN8) While Sholley did not engage in any
"fighting" or in any physically "violent" behavior, his
conduct was both "threatening" and "tumultuous."
As
discussed above, Sholley's outburst included the offense of threatening to commit
a crime. Other aspects of his tirade
included remarks of a threatening nature, even if they fell short of
threatening to commit a crime. The
assertion, in reference to the judge who had presided at Barrio's trial, that
"[s]he's fucked now," suggests an intention to wreak vengeance
against her for having sentenced Barrio to jail. Sholley's concluding statement to a court
house employee that she should "[r]emember what happened in Oklahoma"
and that "[t]his is a bomb ready to
[432 Mass. 729] explode" made
the employee believe that Sholley's opposition to the courts was now about to
take a violent form.
Sholley's
conduct would also qualify as "tumultuous." "Tumultuous" conduct, "while
perhaps not physically violent, may nevertheless be characterized as involving
riotous commotion and excessively unreasonable noise so as to constitute a
public nuisance." Commonwealth v. A Juvenile, supra at 597,
334 N.E.2d 617. The question whether
Sholley's screaming and running through the court house corridor would qualify
as "tumultuous" is a matter of degree. Viewed in the light most favorable to the
Commonwealth, the evidence would support the conclusion that the level of noise
and commotion caused by Sholley's behavior was indeed extreme.
Contrary
to the Appeals Court's assessment that this was merely "the hurly‑burly
that characterizes any busy District Court," Commonwealth v. Sholley, supra at 501, 726 N.E.2d 415, the evidence
indicated that this outburst in fact went far beyond the level of noise and
commotion ordinarily encountered in court house hallways. One indication of the extreme level of noise
and commotion engendered by Sholley's outburst is the number of persons who
abandoned their ordinary duties to respond to that noise and commotion. When Sholley refused to lower his voice,
Court Officer Parks left his post, abandoning a sitting judge and leaving her
with no court officer, in order to ensure that Sholley left the court house
premises. A jury could properly infer
that only a situation of some seriousness or perceived danger would cause a
court officer to abandon his primary job function. Cahill, hearing the commotion from her
vantage point downstairs in front of the first session, viewed it as sufficiently
alarming that she broke off her discussions with another attorney to go
upstairs and make certain the assistant district attorneys under her
supervision were in no danger. Three
police officers at the court house to testify in other cases similarly abandoned
their activities to respond to the outburst, apparently thinking that their
assistance might be needed to quell the disturbance. The conduct of Court Officer Parks, Cahill,
and the three police witnesses strongly suggests that Sholley's screaming gave
rise to a sense of emergency on the part of those who heard it, an emergency
that went way beyond the ordinary "hurly‑burly" to which they
were accustomed. This evidence also
suggests that the noise level of Sholley's yelling and screaming was
sufficiently[432 Mass. 730]
extreme to qualify as "excessively unreasonable." (FN9) Commonwealth v. A Juvenile, supra at 597,
334 N.E.2d 617.
Numerous
other persons at the court house responded to the commotion. People were peering out of doors on the
second floor to see what was happening, and people came out of the first
session and the probation department on the first floor. Noisy behavior that attracts a crowd of
onlookers is a common feature of cases involving "tumultuous"
conduct. See Commonwealth v. Richards, 369 Mass. 443, 340 N.E.2d 892 (1976);
Commonwealth v. Sinai, 47 Mass.App.Ct. 544, 714 N.E.2d 830 (1999);
Commonwealth v. Mulero, 38 Mass.App.Ct. 963, 650 N.E.2d 360 (1995);
Commonwealth v. Carson, 10 Mass.App.Ct. 920, 411 N.E.2d 1337
(1980). (FN10)
The issue
is not whether any one aspect of Sholley's conduct, in isolation, would
constitute "disorderly" conduct.
The issue is whether the several threatening remarks and the two‑to‑three
minute period of loud screaming would, taken together, amount to
"disorderly" conduct. Nor is it
a question whether that conduct or that noise level for that same period of
time would be "disorderly" in some other setting. (FN11)
Here, the fact that Sholley's threats, yelling and screaming occurred
in a court house, while several court rooms were in session, makes the conduct
far more damaging to public order than would the same noise level‑‑or
even words suggestive of threats‑‑at, for example, a sporting
event. At a court house, the level and
duration of "commotion" that can be tolerated by the public is
relatively [432 Mass. 731] low, and the point at which noise
becomes "excessively unreasonable" is also relatively low. Viewed in the light most favorable to the
Commonwealth, the evidence here supports the conclusion that the level of
commotion and noise engendered by Sholley's outburst in the courthouse
corridor, taken in combination with his menacing remarks, constituted
"disorderly" conduct in violation of G.L. c. 272, § 53.
[9] 4. Disruption of court proceedings. Sholley was convicted of violating G.L. c.
268, § 13C, which provides:
"Whoever causes or actively participates in the willful disruption
of proceedings of any court ... may be punished...." Sholley contends that
there was no evidence that he had disrupted any court proceeding. The Commonwealth argues that Sholley's
outburst in the court house distracted court personnel and witnesses at a time
when at least two court rooms were in session and that that suffices to prove a
disruption of court proceedings under G.L. c. 268, § 13C.
[10] We
agree with the defendant, and with the Appeals Court, that the Commonwealth
must show some impact on at least one "proceeding" in order to
establish a violation of G.L. c. 268, § 13C. Commonwealth v. Sholley, supra at 501,
726 N.E.2d 415. As discussed above,
there was ample evidence that Sholley's conduct was highly distracting and
alarming. (FN12) It certainly had the potential to disrupt the
proceedings that were underway in the various court rooms at the Quincy
District Court. However, the record is
silent as to what impact‑‑if any‑‑this disturbance in
the corridor actually had on any of those proceedings. The Commonwealth points out that various
persons suspended their normal court house activities to respond to or watch
Sholley's outburst, but such temporary abandonment of their duties may have had
no impact whatsoever on any proceeding, or only such minimal impact as not to
constitute a "disruption."
See Commonwealth v. Bohmer,
374 Mass. 368, 375, 372 N.E.2d 1381 (1978) (comparable provision of G.L. c.
272, § 40, prohibiting interruption or disruption of schools extends only to
"activity that so significantly disrupts their functioning as to impair
the accomplishment of their educational goals").
For
purposes of the present case, we need not address precisely what form or degree
of impact on a court proceeding [432
Mass. 732] need be shown to
establish a "disruption" that would violate G.L. c. 268, § 13C. Here, there was no evidence of any actual
impact on any proceeding. Sholley was
thus entitled to a required finding of not guilty on the charge of disrupting
court proceedings.
[11][12][13]
5. Prior bad acts. Sholley contends that the judge erred in
allowing the prosecutor to elicit evidence, on cross‑examination, of
Sholley's own prior conviction of assault and battery and of the issuance of
temporary restraining orders against him at the request of his wife and
daughter. (FN13) There was no substantial risk of
a miscarriage of justice. The prior bad
acts at issue‑‑an assault and battery that had apparently led to
the issuance of a G.L. c. 209A restraining order‑‑were not similar
to the crimes with which Sholley was charged.
They were comparable to the offenses at issue in the Barrio trial, and
evidence that Sholley's support of Barrio was a product of his personal
identification with Barrio, and not just a matter of abstract principle, was
relevant to the contested issue of how extreme Sholley's reaction to the Barrio
verdict had been. That Sholley's dislike
of domestic violence prosecutors was a matter of personal grudge, and not just
political philosophy, was relevant to the jury's assessment whether Sholley had
been "out of control" on the day in question (as the Commonwealth
claimed) or whether he had merely spoken in a mildly angry tone to express his
philosophical disagreement with the Barrio verdict (as Sholley claimed). Evidence of prior bad acts may, as here, be
relevant to motive, and the judge acted well within his discretion to allow
evidence of Sholley's own personal involvement with the courts on domestic
violence issues.
[14] 6. Warning that Sholley would be arrested. Sholley also argues that it was error to
allow Detective DiNatale to testify to her "personal opinion" that
she had a basis for a disorderly conduct arrest as of the time that she warned
Sholley that she would arrest him for disorderly conduct. There was no objection[432 Mass. 733] to this testimony, so our standard of review
is whether there was a substantial risk of a miscarriage of justice.
We see no
such risk. The sequence of events
concluded with Detective DiNatale's telling Sholley that she would arrest him
for disorderly conduct if he did not leave the premises, Sholley asking her
what he had done that was disorderly, and DiNatale's recitation to Sholley of
her observations in the court house that she considered disorderly. After this conversation, Sholley left the
area of the court house and moved some 200 yards up the street. The defense opening statement (and closing
argument) made much of the fact that Sholley had obeyed when asked to leave the
court house and when asked by Detective DiNatale to leave the area surrounding
the court house. A recitation of the
actual conversation with Detective DiNatale was relevant from the perspective
of both sides.
While the
use of the term "personal opinion" during this testimony was
objectionable, the single reference to Detective DiNatale's "opinion"
was not prejudicial. From the fact that
Sholley was ultimately arrested and charged, the jury would already be aware
that the police and the prosecutor were of the "opinion" that there
was good ground for pressing the charges.
The judge's instructions properly advised the jury that they were the
sole and exclusive judges of the facts, that they were the sole judges of
witness credibility, and that the complaints against the defendant were not
evidence of guilt. (FN14) That the jury heard Detective DiNatale
testify that she believed she had a basis to arrest the defendant for
disorderly conduct and that she so warned him at the time would not have caused
them to defer to Detective DiNatale's assessment.
[15] 7. Character evidence. Sholley contends that the judge improperly
excluded his proffered evidence of his good character. There was no error, as the foundation for
such evidence was lacking. One witness
testified that she had not discussed the defendant's reputation for "truth
and honesty" with anyone but merely sought to express her own
opinion. Another witness indicated that
he had had one discussion with an unidentified person about
Sholley's reputation for lack of violence, but never identified who that person
was or the relevant group or community with which that person was [432 Mass. 734] associated. The final
character witness claimed to have had discussions about Sholley's reputation
for lack of violence, but never identified any group or community in which that
reputation was based. None of these
attempts to introduce evidence of good character met the foundation requirements. See
Commonwealth v. Dockham, 405 Mass. 618, 631, 542 N.E.2d 591 (1989), and
cases cited.
8. Conclusion. For the foregoing reasons, the judgments of
conviction on the charges of threatening to commit a crime and being a
disorderly person are affirmed. The
judgment of conviction on the charge of disrupting court proceedings is
reversed.
So ordered.
(FN1.) Barrio had previously been convicted of
assault and battery on his son, for which he had served a one‑year jail
sentence. Sholley was of the view that
Barrio's earlier trial and sentence had also been the product of court and
prosecutorial bias against fathers who "disciplined" their children.
(FN2.)
Sholley's tirade included epithets directed at the judge who had presided over
the Barrio trial, referring to her as "that fuckin' bitch" and
opining, "She's fucked now."
At the time of this outburst just outside her court room, the judge was
on the bench conducting other business unrelated to the Barrio case.
(FN3.)
Parks followed Sholley because he wanted to be certain that Sholley would leave
the premises. In doing so, he abandoned
his post as the sole court officer securing a court room that was still in
session.
(FN4.)
The record does not reveal where these three other officers were at the time
they first heard Sholley.
(FN5.)
It is of no consequence that the threat pertained to some uncertain time in the
future. See Commonwealth v. Ditsch, 19 Mass.App.Ct. 1005, 1005, 475 N.E.2d
1235 (1985) (letter sent by inmate at house of correction could constitute a
threat to commit a crime as "absence of immediate ability, physically and
personally, to do bodily harm" does not preclude conviction of threats).
(FN6.)
The facts in Watts v. United States,
394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), bear no resemblance to the
facts of the present case. Sholley was
not delivering a speech to a crowd at a rally, nor was he making statements
about what he would "want" to do "if" some other event
occurred. Rather, he was yelling
directly at his victim, standing inches from her, angrily warning her that she
should "Watch out."
(FN7.)
Section 250.2 of the Model Penal Code (Official Draft and Revised Comments,
1980), defines the crime of disorderly conduct as follows:
"A
person is guilty of disorderly conduct if, with purpose to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof,
he: (a) engages in fighting or
threatening, or in violent or tumultuous behavior; or (b) makes unreasonable noise or
offensively coarse utterance, gesture or display, or addresses abusive language
to any person present; or (c) creates a
hazardous or physically offensive condition by any act which serves no
legitimate purpose of the actor."
The
1980 Official Draft of § 250.2 is unchanged from the 1962 Proposed Official
Draft that we approved in Alegata v.
Commonwealth, 353 Mass. 287, 304, 231 N.E.2d 201 (1967).
(FN8.) Where the prosecution of Sholley does
not rely on subsection (c), the Commonwealth does not have to show the absence of
any "legitimate purpose," and the interpretation of subsection (c)
provided by Commonwealth v. Feigenbaum,
404 Mass. 471, 536 N.E.2d 325 (1989), is irrelevant. See
Commonwealth v. Sinai, 47 Mass.App.Ct. 544, 547‑548, 714 N.E.2d 830
(1999) (prosecution for fighting, threatening to fight, or tumultuous behavior
under subsection [a] does not require proof that conduct had "no
legitimate purpose"; requirement of
showing "no legitimate purpose" pertains exclusively to prosecution
under subsection [c] ). The Appeals
Court's analysis of Sholley's disorderly conduct erroneously grafted the
"no legitimate purpose" requirement of subsection (c) onto a
prosecution that was based solely on subsection (a). Commonwealth v. Sholley, 48
Mass.App.Ct. 495, 499‑500, 726 N.E.2d 415 (2000).
(FN9.) Defense counsel's opening statement
acknowledged that Sholley has "a fairly deep and loud resonant
voice." When he later testified,
Sholley himself confirmed in vivid terms that his voice, when raised, is
exceptionally powerful: "If I had
yelled, there would have been corpses coming out of the cemetery."
(FN10.) In
Commonwealth v. Sinai, supra at 548, 714 N.E.2d 830, the Appeals Court
distinguished Commonwealth v. Zettel,
46 Mass.App.Ct. 471, 706 N.E.2d 1158 (1999), by noting that Sinai's screaming
and yelling at an officer during an argument about a parking fee had attracted
a crowd whereas Zettel's "loud" argument with an officer about her
double‑parked car had not risen to the level of "screaming and
yelling" and had not attracted a crowd.
(FN11.)
We have noted, with reference to that portion of G.L. c. 272, § 53, that
addresses "disturbers of the peace," that the conduct proscribed
varies with the setting and the surrounding circumstances. Commonwealth v. Orlando,
371 Mass. 732, 735, 359 N.E.2d 310 (1977), and cases cited (noting that hurling
objects in deserted location would not disturb peace while hurling objects in
populated area would be violation, and that loud and abusive language in public
store might not be violation but that loud yelling late at night in residential
neighborhood would be violation).
(FN12.) As also discussed above, the fact that
this conduct took place in a court house while it was in session is a
circumstance that may properly be taken into account in determining whether the
defendant's conduct was "disorderly."
(FN13.) There was no objection by defense
counsel to this line of questioning, but Sholley himself, when first asked
about his prior conviction, responded, "I'm not sure what this has to do
with the proceedings, Your Honor."
We reject the assertion that a comment from a witness is sufficient to
preserve an issue for appeal. In the
absence of any proper objection from trial counsel, the appropriate standard of
review is whether there is a substantial risk of a miscarriage of justice. Treating the matter as a claim of ineffective
assistance of counsel, the standard of review is the same. See
Commonwealth v. Curtis, 417 Mass. 619, 624‑625 n. 4, 632 N.E.2d 821
(1994).
(FN14.) At the time of empanelment, the jurors
had also been asked whether they would believe the testimony of a police
officer over the testimony of a civilian witness on account of the officer's
status.