COMMONWEALTH v. MALLAHAN (2008)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following his arrest for assault and battery arising out of a domestic violence incident, the defendant launched a screaming tirade at the arresting police officers. The defendant's loud yelling continued for some ten minutes, as the officers walked the defendant, in handcuffs, from an apartment toward the police cruiser. The defendant's rantings included warnings that he would sue the officers, as well as loud protestations interlaced with profanities that he had done nothing wrong, including that he never “fucking touched that bitch.” When they reached the cruiser, the defendant stiffened his body upright. One officer placed his hand on the defendant's head in order to move the defendant into the cruiser. The defendant sat on the cruiser's seat but left his feet outside. The defendant, who recently had neck surgery, yelled that the police had hurt his neck. The officers removed the handcuffs and called the fire department. An ambulance transported the defendant to South Shore Hospital and then to Massachusetts General Hospital.

During the originating domestic violence incident, approximately six people in the housing complex had emerged from their apartments and gathered outside. As the cruisers arrived with sirens on, additional residents emerged or peered out their apartment windows. At one point, it was estimated ten persons were outside.

The defendant was charged with assault and battery for the originating domestic violence incident and with disorderly conduct for what transpired during his arrest. The defendant was acquitted of the assault and battery, but was convicted of disorderly conduct. G.L. c. 272, § 53.

The defendant's principal appellate challenge is that there was insufficient evidence on the disorderly conduct charge  ¹ and that this conviction cannot withstand constitutional muster under the controlling legal principles set forth in Commonwealth v. A Juvenile, 368 Mass. 580, 334 N.E.2d 617 (1975), and Commonwealth v. Sholley, 432 Mass. 721, 739 N.E.2d 236 (2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1621, 149 L.Ed.2d 484 (2001). The essence of this claim is that the defendant's conviction was based on words alone, and there was no evidence that the defendant engaged in threatening or violent conduct. The defendant did not physically resist arrest (the Commonwealth implicitly acknowledges that this was not a case of resisting arrest), and did not make any threats or engage in violence. Indeed, the only evidence of a physical gesture was the defendant's stiffening of his body as he was brought near the cruiser and keeping his feet outside the cruiser. Based on our review of the record, we conclude that the defendant's conviction, based as it was on words alone, cannot stand. Accordingly, we reverse.²

Discussion. In Commonwealth v. A Juvenile, supra, the Supreme Judicial Court limited the definition of disorderly conduct it had previously engrafted from the Model Penal Code § 250.2 onto G.L. c. 272, § 53, so as to keep the statute from being used to punish speech expressive conduct protected under the Massachusetts and United States Constitutions. The definition of the offense of disorderly conduct is limited and set forth in that case 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 ․ (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”

Commonwealth v. A Juvenile, supra at 585–586, 334 N.E.2d 617. As later analyzed in Commonwealth v. Sholley, 432 Mass. at 728, 739 N.E.2d 236, “[w]hat 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.”

While acknowledging the constitutional protections that surround speech, the Commonwealth asserts that the defendant's loud and angry verbal tirade rose to the criminal level of tumultuous disorderly conduct under subsection (a) quoted above. The Commonwealth argues that tumultuous behavior, “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, 368 Mass. at 597, 334 N.E.2d 617. We conclude, however, that on the evidence presented, the defendant's loud tirade could not be prosecuted as tumultuous behavior under this definition.

The Commonwealth concedes that “there was absolutely no evidentiary support for the hazardous or physically offensive condition prong of the statute. There was essentially no live issue at trial concerning a hazardous or physically offensive condition.” (Com. Br. at 21) Instead, the evidence (including the testimony of the two arresting officers) showed only that the defendant verbally protested his arrest, taunted the officers with possible legal action, and railed about the officers' hurting his neck. Words alone are not sufficient to establish tumultuous conduct. The only exception for a word-predicated offense under G.L. c. 272, § 53, is for “fighting words,” that is, words, “which by their very utterance inflict injury or intend to incite an immediate breach of the peace.” Commonwealth v. A Juvenile, supra at 591, 334 N.E.2d 617, quoting from Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). The Commonwealth does not contend, nor could it, that the defendant's speech in this case constitutes fighting words. That the defendant's language was vulgar and unpleasant did not translate the speech into tumultuous, disorderly conduct. “To be disorderly, within the sense of the statute, the conduct must disturb through acts other than speech; neither a provocative nor a foul mouth transgresses the statute.” Commonwealth v. LePore, 40 Mass.App.Ct. 543, 546, 666 N.E.2d 152 (1996). “[T]he mere use of obscenities in public does not make out the crime of disorderly conduct․” Commonwealth v. Johnson, 36 Mass.App.Ct. 336, 338, 631 N.E.2d 71 (1994).

The Commonwealth further argues that the defendant's nighttime eruption outside the apartment complex was noisy enough to cause people to gather and neighbors to look out their apartment windows and, as such, was extreme enough to constitute disorderly conduct. However, the mere fact that persons may be drawn to a scene because of noise and “verbal cacophony” does not mean that a defendant has engaged in criminally tumultuous disorderly conduct. See Commonwealth v. A Juvenile, supra at 593, 334 N.E.2d 617, quoting from Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). On this issue, we note that in Commonwealth v. A Juvenile, supra at 582, 334 N.E.2d 617, “a crowd of approximately 100 shoppers gathered” to watch the episode. That level of crowd gathering did not qualify the juvenile's verbal tirade as tumultuous, disorderly conduct under that prong of the definition; nor did the lesser assemblage of the estimated ten or so persons who gathered outside the apartments in the instant case. (Moreover, in this case the evidence was mixed concerning the timing of onlookers gathering because certain of the onlookers came outside during the originating domestic violence incident and with the arrival of the cruisers—both of which events preceded the defendant's arrest and loud verbal protest.)

Finally, the Commonwealth's depiction of an extreme, tumultuous event is not persuasive. In this respect, Commonwealth v. Lopiano, 60 Mass.App.Ct. 723, 805 N.E.2d 522 (2004), is instructive. In that case, the police came upon Lopiano fighting with his girlfriend in a car and ordered him to exit. Lopiano approached the police officer yelling and flailing his arms, protesting that the police were violating his civil rights. The court held this episode did not “support a reasonable inference that ‘the noise and commotion caused by the [defendant's] behavior was ․ extreme.’ ” Id. at 726, 805 N.E.2d 522, quoting from Commonwealth v. Sholley, 432 Mass. at 729, 739 N.E.2d 236. Accord Norwell v. Cincinnati, 414 U.S. 14, 16, 94 S.Ct. 187, 38 L.Ed.2d 170 (1973) (reversing a conviction for disorderly conduct where the defendant's protestations to the arresting officers were protected speech).

The judgment is reversed and the verdict is set aside. Judgment shall enter for the defendant.

So ordered.

FOOTNOTES

1.  In contesting the sufficiency of the evidence, the defendant made a motion for a required finding of not guilty after the close of the Commonwealth's case.

2.  The defendant advances a series of other appellate issues, which we need not reach in light of our disposition reversing the conviction.