Court of Appeals
To be used in conjunction with the CPS Criminal Procedure Textbook
Commonwealth Police Service, Inc.
and the Law Office
of Patrick Michael Rogers
Commonwealth v. Zettel, 46 Mass.App.Ct. 471 (1999)
Appeals Court of Massachusetts,
Richard M. Russell for the defendant.
David Keighley, Assistant District Attorney, for the Commonwealth.
Present: ARMSTRONG, DREBEN and JACOBS, JJ.
Double-parked behind a school bus while waiting for her six and one-half year old son to emerge from elementary school, Thelma Zettel refused to move her car despite being repeatedly told to do so by a police officer. This incident led to argument, to arrest, and, ultimately, to Zettel's conviction (by a jury) as a disorderly person under G.L. c. 272, § 53. (FN1)
Represented by counsel on appeal--she had appeared pro se in the District Court--the defendant claims there was insufficient[46 Mass.App.Ct. 472] evidence to convict her of the offense and that the judge improperly permitted the jury to consider constitutionally protected speech in determining the defendant's intent. We agree with the defendant's first contention and, therefore, need not reach the second claim of error.
Based on the Commonwealth's evidence presented through
its sole witness, police officer Robert Deschenes,
the jury could have found the following facts.
The statute at issue, G.L. c.
272, § 53, set forth in the [46 Mass.App.Ct.
473] margin, (FN2) renders "idle and disorderly" conduct a
punishable criminal offense. As pointed
out in Commonwealth v. Feigenbaum, 404 Mass.
471, 473-474, 536 N.E.2d 325 (1989), "Judicial construction of the term
'idle and disorderly' has had a tortured history in the case law of this
Commonwealth." In Alegata v. Commonwealth, 353
"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 ...
[46 Mass.App.Ct. 474] "(c) creates a hazardous or physically offensive condition by any actwhich serves no legitimate purpose of the actor " (emphasis supplied in Feigenbaum).
The Commonwealth argues that the evidence supports both sections of the definition--the defendant's actions constituted tumultuous conduct and also created a hazardous condition by acts which served no legitimate purpose of the defendant.
1. Tumultuous behavior. Turning to the ordinary dictionary definition, we find that "tumultuous" is defined as "1: marked by tumult: full of commotion and uproar: riotous, stormy, boisterous ... 2: tending or disposed to cause or incite a tumult ... 3: marked by violent or overwhelming turbulence or upheaval." Webster's Third New Internatl. Dictionary 2462 (1993). (FN5)
Other cases inform.
In Commonwealth v. Richards, 369
In Commonwealth v.
In another case, the "defendant's actions of
removing his hands from the [police] cruiser, flailing them in an agitated and
belligerent manner while berating [police] Officer Rivera with loud
profanities, and shoving his hands into the pockets of his baggy shorts,
especially in light of Officer Rivera's previous encounter with the defendant
on a gun charge, constituted tumultuous or threatening behavior beyond
protected expressive speech or conduct." Commonwealth v. Mulero,
38 Mass.App.Ct. 963, 965, 650 N.E.2d 360 (1995). Such actions, which led a crowd of about
thirty persons to gather, provided the police with probable cause to arrest the
defendant on a charge of disorderly conduct.
 In the present case, by contrast, the jury were not warranted in finding that the defendant, "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," engaged in tumultuous behavior as defined by statute, case law, or lexicon.
 2. Conduct which serves no legitimate purpose. While the Commonwealth's evidence that the defendant did not heed the officer's warnings, failed to move her car, and illegally parked in a private driveway, warranted, perhaps, a finding that the defendant created "a hazardous or physically offensive condition," the Commonwealth offered no evidence to show that the defendant's action served no legitimate purpose. In Feigenbaum, 404 Mass. at 475, 536 N.E.2d 325, the court held that although behavior which was motivated by political purposes could be found to have created a hazardous condition, and might be considered "criminal under the common law or by some statute," such behavior "does not constitute disorderly conduct under G.L. c. 272, § 53," because it has "a legitimate purpose."
The Commonwealth would have us confine Feigenbaum and the term "no legitimate
purpose" to situations involving political expression. However, neither the opinion nor the Model
Penal Code suggests such a limitation.
Indeed, another section [46 Mass.App.Ct.
476] of the Model Penal Code, § 250.4, defining "harassment,"
(FN6) described in the comment as "a companion offense to disorderly
conduct under § 250.2," contains the same phrase. Model Penal Code§ 250.4 comment 1, at
360. Commenting on the catchall language
of subsection (5) of § 250.4, which covers "any other course of alarming
conduct serving no legitimate purpose of the actor," the drafters stated,
"The import of the phrase ... is broadly to exclude from this subsection
any conduct that directly furthers some legitimate desire or objective of the
actor." Model Penal Code§ 250.4
comment 5, at 368.
While the comment to § 250.4 of the Model Penal Code is noteworthy, far more significant is the language of § 250.2(c), as construed by Feigenbaum. There is no reason provided by that case or other authority to view a political cause as anything other than one of a number of "legitimate purposes" under § 53. Surely, a mother's interest in picking up her six and one-half year old son when he was released from school falls within the definition.
The judgment of conviction for being a disorderly person is reversed, and the verdict is set aside. Judgment is to enter for the defendant.
(FN1.) The defendant had also been charged with resisting arrest and assault and battery on a public servant; the former charge was dismissed and the defendant was found not guilty of the latter.
(FN2.) General Laws c. 272, § 53, as amended through St.1983, c. 66,§ 1, provides: "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."
(FN3.) Subsection (b) of § 250.2 is set forth
in Commonwealth v. Richards, 369
(FN4.) The language of the section in the
Proposed Official Draft of the Model Penal Code (1962) does not differ from
that contained in the Official Draft of 1980.
(FN5.) "Tumult" is defined as "1a: disorderly and violent movement, agitation or milling about, of a crowd accompanied [usually] with great uproar and confusion of voices: commotion, turmoil." Webster's Third New Internatl. Dictionary 2462 (1993).
In the American Heritage Dictionary of the English Language (3d ed. 1992), "tumult" is defined as "1. The din and commotion of a great crowd. 2.a. A disorderly commotion or disturbance. b. A tempestuous uprising; a riot," and "tumultuous" as "1. Characterized by tumult; noisy and disorderly. 2. Tending to cause tumult."
(FN6.) Section 250.4 provides as follows: "A person commits a petty misdemeanor if, with purpose to harass another, he:
"(1) makes a telephone call without purpose of legitimate communication; or
"(2) insults, taunts, or challenges another in a manner likely to provoke violent or disorderly response; or
"(3) makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language; or
"(4) subjects another to an offensive touching; or
"(5) engages in any other course of alarming conduct serving no legitimate purpose of the actor."