Opinion
13-P-409
08-12-2015
COMMONWEALTH v. AARON M. BARTOW.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was tried before a jury in the District Court on two counts of threatening to commit a crime, G. L. c. 275, § 2 (assault and battery, and arson), and one count of disorderly conduct, G. L. c. 272, § 53. Prior to trial, the defendant filed a motion to dismiss the complaint, which was denied. At trial, the judge directed a verdict in favor of the defendant on the charge of threatening to commit assault and battery. The jury convicted the defendant of disorderly conduct and acquitted him of threatening to commit arson.
On appeal, the defendant argues that (1) the evidence was insufficient to support the conviction; (2) the motion judge erred in denying his pretrial motion to dismiss; and (3) the disorderly conduct statute is unconstitutionally overbroad and vague on its face. We affirm.
Discussion. 1. Sufficiency of the evidence. To determine whether the evidence was sufficient, we must decide "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 433 U.S. 307, 318-319 (1979). The crime of disorderly conduct includes persons who, "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . .: (a) engage[] in fighting or threatening, or in violent or tumultuous behavior; or . . . (c) create[] a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." Commonwealth v. Chou, 433 Mass. 229, 232 (2001).
As the trial transcript indicates that the jury were not instructed on the theory that the defendant recklessly created a risk of public inconvenience, annoyance or alarm, we do not discuss that theory.
Based on the evidence, the jury could have found that the defendant jumped in front of the car his fiancée was driving on a State highway; yelled, "Run over me. Go ahead, run over me, you blanket[y] blank"; screamed at his fiancée repeatedly; pointed his finger at her; waived his hands in the air; and removed his shirt and flailed it in the air. The jury also could have found that the defendant's conduct, characterized by one witness as "out of control arguing," caused vehicles on the public highway to slow and go around him. Viewing this evidence and the inferences therefrom in the light most favorable to the Commonwealth, we conclude that the jury could have found the essential elements of the crime.
As to the first element, i.e., that the defendant's purpose was to cause public inconvenience, annoyance or alarm, we note that "intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial." Commonwealth v. Casale, 381 Mass. 167, 173 (1980). Further, "[t]he inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable." Ibid. Although a close call, we conclude that the evidence was sufficient to support the requisite finding of intent. We also conclude that the "public" element of the offense was "readily met . . . where the proscribed conduct [took] place on [a] public street[]." Commonwealth v. Mulvey, 57 Mass. App. Ct. 579, 582 (2003).
The evidence also supports a finding on both theories of disorderly conduct: (1) engaging in fighting or threatening, or in violent or tumultuous behavior, and (2) creating a hazardous or physically offensive condition that serves no legitimate purpose. The defendant's obstruction of traffic on a public street, a State highway, supports a finding that he created a hazardous condition that served no legitimate purpose. See Commonwealth v. Feigenbaum, 404 Mass. 471, 475 (1989) (blocking truck from entering military base warranted finding that defendant created hazardous condition). Further, the defendant's conduct on the highway -- jumping in front of the car and yelling "run over me," pointing his finger and screaming repeatedly at his fiancée, "out of control arguing" with his fiancée, removing his shirt and flailing it in the air -- supports a finding that the defendant engaged in "fighting or threatening, or in violent or tumultuous behavior." See Commonwealth v. Sholley, 432 Mass. 721, 729 (2000), cert. denied, 532 U.S. 980 (2001) ("'Tumultuous' conduct . . . may . . . be characterized as involving riotous commotion and excessively unreasonable noise so as to constitute a public nuisance"); Commonwealth v. Sinai, 47 Mass. App. Ct. 544, 548 (1999) (indicating loud and protracted screaming and yelling may qualify as unreasonable noise that constitutes a public nuisance and thus tumultuous conduct). In sum, we conclude that the evidence was sufficient to support the conviction of disorderly conduct.
We reject the defendant's claim that by "walking away from a fight, . . . absenting himself from an emotionally volatile situation," he acted with a "legitimate purpose." The hazardous or physically offensive condition was not the defendant's walking away; it was his jumping in front of the car and related conduct on the public highway that disrupted traffic.
As there was sufficient evidence, we reject the defendant's claim that the judge erred in denying his motion for a required finding of not guilty on the disorderly conduct charge. We also reject the defendant's related argument that, in acting on the motion, the judge erred when "he told the prosecutor that it was 'up to her'" whether the disorderly conduct charge would be presented to the jury. Our reading of the transcript indicates that the judge was simply questioning the parties as to the possibility of a plea, not, as the defendant suggests, that the judge was allowing the Commonwealth to "guide his decision" on whether to allow the motion.
2. Pretrial motion to dismiss complaint. On appeal, the defendant reasserts the three claims he raised in his motion: (1) his arrest was unlawful; (2) he was not afforded a show cause hearing, G. L. c. 218, § 35A; and (3) the application for the complaint failed to meet the probable cause requirements of Mass.R.Crim.P. 3(g)(2), as appearing in 442 Mass. 1502 (2004).
The motion judge was not the trial judge.
As to the defendant's claim of unlawful arrest, even assuming, without deciding, that the arrest was unlawful, "[d]ismissal of a complaint is a drastic remedy which should be used in only a limited number of circumstances." Commonwealth v. Jacobsen, 419 Mass. 269, 276 (1995). Moreover, "[a]n illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction." Id. at 275, quoting from United States v. Crews, 445 U.S. 463, 474 (1980). There must be a showing of egregious misconduct on the part of the police or a serious threat of prejudice to the defendant, and the defendant identifies none. See and compare Commonwealth v. Jacobsen, supra at 276-277. See also Commonwealth v. Cinelli, 389 Mass. 197, 210, cert. denied, 464 U.S. 860 (1983). As to the defendant's claim that the complaint should have been dismissed because he was not afforded a show cause hearing, "[t]he due process accorded the defendant at a full trial with [a] jury more than compensates for whatever he may theoretically have lost as a result of the absence of a § 35A hearing before a clerk-magistrate." Commonwealth v. Leger, 52 Mass. App. Ct. 232, 242 (2001). See Commonwealth v. Irick, 58 Mass. App. Ct. 129, 132-133 (2003). Lastly, we decline to address the defendant's claim that dismissal was required because the application for the criminal complaint did not meet the probable cause requirements of Mass.R.Crim.P. 3(g)(2). The defendant's brief on this point consists of two conclusory assertions unsupported by argument or legal citation; it does not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
As the complaint in Commonwealth v. Tripolone, 44 Mass. App. Ct. 23 (1997), had been dismissed before trial, that case is distinguishable from the one before us.
In addition to the claims the defendant raised in his original motion, he argues that the motion judge "deprived [him] of his right to a proper defense" by (1) failing to read the memorandum in support of his motion; (2) refusing to hear defense counsel's entire argument during the hearing; and (3) failing to reference the defendant's argument in his findings and order. Assuming, without deciding, that these claims are true and the judge's omissions erroneous, we conclude that, for all the reasons discussed above with respect to the motion to dismiss, there was no prejudice flowing from the asserted omissions.
The defendant does not identify the specific arguments he was not allowed to present.
3. Constitutionality of statute. As the defendant notes in his brief, his claims that the statute, as presently construed, is overbroad and vague have been rejected by prior case law. See, e.g., Alegata v. Commonwealth, 353 Mass. 287, 303-304 (1967) ("'[D]isorderly' sets forth an offence with sufficient definiteness to withstand constitutional challenge on the ground of vagueness"); Commonwealth v. A Juvenile, 368 Mass. 580, 597-598 (1975) (rejecting claim that element of intent is unconstitutionally vague and construing that element to relate exclusively to activities that involve no lawful exercise of a First Amendment right); Commonwealth v. Chou, 433 Mass. at 231-232 (recounting constitutional challenges).
Judgment affirmed.
By the Court (Berry, Milkey & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 12, 2015.