COMMONWEALTH v. CHAPMAN (2007)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

There is no question that the defendant and Kenneth Dixon  ¹ engaged in a fight outside the Happy Swallow bar in Framingham on the night of December 25, 2005. The sole question is whether the defendant's participation constituted disorderly conduct. On appeal, the defendant asserts that the Commonwealth presented insufficient evidence to sustain such a conviction. We agree.

Proof that the defendant engaged in disorderly conduct required the Commonwealth to prove that he, with purpose to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, (1) engaged in fighting or threatening, or in violent or tumultuous behavior; or (2) created a hazardous or physically offensive condition by an act that served no legitimate purpose. See Commonwealth v. Chou, 433 Mass. 229, 231–232, 741 N.E.2d 17 (2001). Given the uncontradicted evidence of self-defense, even viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677–678, 393 N.E.2d 370 (1979), a rational trier of fact could not be satisfied beyond a reasonable doubt that the defendant's participation in the fight was done with the intent to cause public inconvenience, annoyance, or alarm, or, alternatively, that it created a hazardous or physically offensive condition by an act that served no legitimate purpose. See Commonwealth v. Chou, supra at 232, 741 N.E.2d 17.

Responding to a report of a fight at the Happy Swallow bar, Framingham police Officer Lenny Pini arrived almost immediately and observed the defendant and Dixon up against a car on South Street throwing punches at each other. A group of six to eight youths were watching. Pini got right up close to Dixon and the defendant and verbally ordered them to stop, but they kept fighting. Pini sprayed each of them in the face with pepper spray to little effect and then forced both of them to the ground.

After the defendant and Dixon were arrested, each disclosed to Pini how the fight had begun. Inside the Happy Swallow, the defendant approached Dixon and asked to buy some marijuana. Dixon said that he didn't have marijuana and offered crack cocaine instead. When the defendant expressed strong feelings against crack cocaine, Dixon punched the defendant in the face because he had “disrespected him.” The defendant tried to leave, but Dixon followed him outside and the fight continued.

The evidence in the Commonwealth's case alone raised the question of self-defense. See Commonwealth v. Galvin, 56 Mass.App.Ct. 698, 700–702, 779 N.E.2d 998 (2002) (when evidence viewed in light most favorable to defendant raises self-defense, Commonwealth must disprove self-defense). To prove that the defendant intended to cause public inconvenience, annoyance, or alarm, or that his conduct recklessly created such a risk, a necessary element of disorderly conduct, the Commonwealth needed to prove beyond a reasonable doubt that the defendant was not engaged in legitimate self-defense. Likewise, to prove that the defendant's conduct created a hazardous or physically offensive condition by an act that served no legitimate purpose required the Commonwealth to prove that the defendant was not engaged in self-defense.

Even viewed most favorably to the Commonwealth, the evidence does not permit a reasonable fact finder to conclude beyond a reasonable doubt that the defendant was not engaged in legitimate self-defense.² While the defendant's conduct was less than exemplary, all the evidence was that Dixon began the fight by punching the defendant in the face and pursued the defendant outside the bar to continue the fight. The pivotal testimony regarding the defendant's participation in the fight after Pini's arrival emerged in direct and cross-examination of Pini:

On direct examination (Tr. 17):

Q. “How far away were you from them?”

A. “I was next to them․”

Q. “So three or four feet?”

A. “I was right in their faces.”

Q. “Verbally?”

A. “Yes, verbally.”

On cross-examination (Tr. 25):

Q. “Now, did you attempt to break up the fight other than asking them to stop, get between them?”

A. “I'm not going to get between two people punching, I'm going to tell them to stop and then I'm going to use my tools․ I'm not going to get injured.”

Pini's testimony, which was the only evidence bearing on whether the defendant had an alternative to physical resistance, was insufficient to establish beyond a reasonable doubt that the defendant lost his right to self-defense once the police arrived. Pini's arrival, his verbal order to the combatants to stop, his application of pepper spray, his forcing the combatants to the ground when the spray proved ineffective, and the defendant's cessation of fighting occurred in one short and continuous sequence. Nothing suggests that, at some juncture in that sequence, someone in the defendant's position would have recognized the police, ceased fighting, and allowed the police to intervene without endangering his person. “[I]t is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense.” Commonwealth v. Latimore, supra at 677, 393 N.E.2d 370. Nor may a conviction rest upon the piling of inference upon inference or conjecture and speculation. See Commonwealth v. Ferguson, 384 Mass. 13, 17–18, 422 N.E.2d 1365 (1981). The evidence was insufficient to establish that Pini's verbal command and other actions were sustained enough or clear enough to be recognized by the defendant in the midst of the affray so as to vitiate the right to self-defense.³ See Commonwealth v. Feigenbaum, 404 Mass. 471, 475, 536 N.E.2d 325 (1989) (Commonwealth offered insufficient evidence that defendant's actions taken in disregard of police request were without legitimate purpose); Commonwealth v. Zettel, 46 Mass.App.Ct. 471, 475–476, 706 N.E.2d 1158 (1999) (same).

Accordingly, the judgment is reversed and the finding is set aside. Judgment is to enter for the defendant.

So ordered.

FOOTNOTES

1.  We note an occasional alternate spelling, “Dickson,” in the transcript.

2.  Even were the trial judge to disbelieve the evidence bearing on self-defense, that disbelief alone would not establish beyond a reasonable doubt that the defendant was not engaged in self-defense throughout the encounter.

3.  Although not necessary to our conclusion, we note that the only other evidence as to the defendant's awareness of Pini emerged in the defendant's case when the defendant testified that he wasn't aware of Pini's presence until after he was hit in the face with pepper spray. At that point, he also heard the word “police” and “immediately got on the ground” and complied. (Tr. 37–38)