Opinion
11-P-383
03-08-2012
COMMONWEALTH v. DWAYNE L. JONES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal, the defendant challenges his conviction of disorderly conduct, G. L. c. 272, § 53, on the ground that there was insufficient evidence to support the conviction. The charge was based on the defendant's behavior outside a bar known as Norvia's Place, after midnight on March 27, 2009. We affirm.
The defendant was also convicted of violating G. L. c. 265, § 13D (assault and battery on a police officer); however, he raises no issue on appeal with respect to that conviction.
In summary, the evidence taken in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), permitted a jury to find the following. Responding to a call, police arrived to find the defendant outside Norvia's Place, screaming, angry, punching his hand into his fist, agitated, confrontational, and aggressive. The police attempted to calm the defendant down and to determine what was upsetting him. Multiple efforts in this regard failed, although ultimately the police were able to learn that the defendant was upset about a $14 charge. The defendant turned his hostility towards the officers, and yelled obscenities and profanities. While he was highly upset, he accused the police of not listening to him and called them 'fucking spic ass niggers.' The defendant refused to cooperate with the officers' requests that he calm down and relax. A crowd gathered and traffic slowed outside the bar as a result of the commotion.
'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.' Alegata v. Commonwealth, 353 Mass. 287, 304 (1967), quoting from American Law Institute, Model Penal Code, Proposed Official Draft § 250.2 (1962). In Commonwealth v. A Juvenile, 368 Mass. 580, 587-597 (1975), the constitutionality of G. L. c. 272, § 53, was upheld by 'holding subsection (b) of § 250.2 of the Model Penal Code definition to be unconstitutionally overbroad, and making clear that the statute only can reach conduct 'which involves no lawful exercise of a First Amendment right." Commonwealth v. Feigenbaum, 404 Mass. 471, 474 (1989), quoting from A Juvenile, supra at 599.
Where, as here, the Commonwealth seeks to rest its case primarily on proof that the defendant engaged in tumultuous behavior, it need not prove that the defendant's conduct served no legitimate purpose. Commonwealth v. Sinai, 47 Mass. App. Ct. 544, 548 (1999). Instead, the Commonwealth need only prove that the defendant engaged in 'conduct which may be characterized as involving riotous commotion and excessively unreasonable noise so as to constitute a public nuisance.' Ibid. Disorderly conduct encompasses acts that 'intentionally tend to disturb the public tranquility or alarm or provoke others.' Ibid. 'Noisy behavior that attracts a crowd of onlookers is a common feature of cases involving 'tumultuous' conduct.' Commonwealth v. Sholley, 432 Mass. 721, 730 (2000).
We are satisfied here that the evidence permitted a finding beyond a reasonable doubt that the defendant's conduct -- and not solely his words -- satisfied the elements of the crime. The defendant was threatening, aggressive, and confrontational, as evidenced by the pounding of his fist into his hand, his yelling, his inability to calm down or to cooperate with the officers' instructions, and his use of profanities, obscenities, and racial slurs. Moreover, the judge's instructions assured that the jury would not convict on the defendant's speech alone by clearly instructing them to that effect.
The judge correctly instructed: 'Speech alone, no matter how coarse or offensive, may not constitute disorderly conduct within the meaning of the Statute. As the Defendant cannot be convicted based solely on the exercise of his First Amendment rights unless the speech falls outside the scope of the [First] Amendment protections. That is to say it constitutes fighting words which by their very utterance tend to incite an immediate breach of the peace.'
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For these reasons, the judgments are affirmed.
So ordered.
By the Court (Cypher, Cohen & Wolohojian, JJ.),