Opinion
13-P-1492
05-21-2015
COMMONWEALTH v. ARIANA D. MURRELL (and three companion cases).
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
The defendants, Ariana Murrell and Marcus Rosario, appeal their convictions of violating the city of Lynn's noise ordinance (ordinance). Rosario was convicted of one count of violating the ordinance and Murrell was convicted of three counts of violating the ordinance. The defendants argue that the ordinance is void for vagueness on its face and as applied. The defendants did not properly preserve either claim. See Commonwealth v. Moses, 436 Mass. 598, 605 n.4 (2002) ("A void for vagueness challenge is a facial challenge that must be raised in a pretrial motion to dismiss"); Commonwealth v. Bell, 455 Mass. 408, 419 (2009); Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 266 (2013) ("[A]n as-applied challenge may be preserved in a motion for a required finding of not guilty after the Commonwealth has presented its evidence"). As a result, we only review to determine if any error creates a substantial risk of a miscarriage of justice. See Commonwealth v. Bell, 455 Mass. at 419, citing Commonwealth v. Oakes, 407 Mass. 92, 94-95 (1990). There is no basis to conclude that a substantial risk of a miscarriage of justice exists based upon this facial attack on the ordinance. See Commonwealth v. Matsos, 421 Mass. 391, 396-399 (1995) (concluding that there is no substantial risk of a miscarriage of justice even though a portion of the statute the defendant was convicted under was subsequently held to be unconstitutionally vague, because it was not vague as applied to the defendant). Cf. Chief of Police of Worcester v. Holden, 470 Mass. 845, 860 (2015) ("[E]ven when the outer boundaries of a law are imprecise, such imprecision does not permit a facial attack on the entire law by one whose conduct 'falls squarely within the "hard core" of the [law's] proscriptions,'" quoting from Commonwealth v. Orlando, 371 Mass. 732, 734 [1977]).
The defendants stated at oral argument in this court that they were making an as-applied challenge to the ordinance, and not merely a facial challenge. The defendants have not included citations in their brief to sections of opinions regarding an as-applied challenge, nor did they clearly delineate this argument in their brief. Nonetheless, we address this argument because the defendants may have raised a factual argument that the ordinance is void as applied.
Murrell did file a motion to dismiss, but it did not include an argument that the ordinance was void for vagueness. The defendants also each filed a motion for a required finding of not guilty. Each motion argued that the "ordinance violated the [D]efendant's right to due process by not giving any [D]efendant adequate notice of the conduct which would be a violation, and is therefore void for vagueness as a matter of law." Those are facial challenges that were raised at an inappropriate time in the proceeding.
Even if the defendant had properly raised a facial void for vagueness argument, it would not change the outcome. This ordinance is not void for vagueness on its face. "A law is not vague . . . if it requires a person to conform his conduct to an imprecise but comprehensible normative standard so that men of common intelligence will know its meaning." Commonwealth v. Bohmer, 374 Mass. 368, 372 (1978), quoting from Commonwealth v. Orlando, 371 Mass. 732, 734 (1977). "Its language will be adequate if it 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.'" Commonwealth v. Reyes, 464 Mass. 245, 249 (2013) (citation omitted). "A statute is satisfactory so long as it clearly indicates what it prohibits as a whole." Commonwealth v. Bohmer, supra, citing Grayned v. Rockford, 408 U.S. 104, 110 (1972). Here, the ordinance introduced at trial states:
"It shall be unlawful for any person to willfully make or continue, or cause to be made or continued, any loud, unnecessary or unusual noise which disturbs the p[ea]ce or quiet of any neighborhood or which causes discomfort or annoyance to any reasonable person of normal sensitiveness residing in the area. The standards which shall be considered in determining whether a violation of the provisions of this section exist[s] shall include, but not be limited to, the following:Here, the inclusion of the term "any reasonable person" is applying an objective rather than a subjective standard for enforcing the ordinance. See, e.g., Munn v. Ocean Springs, 763 F.3d 437, 440-441 (5th Cir. 2014) (The vagueness associated with the word "annoys" is "remedied . . . by the inclusion of the reasonable person standard"). The ordinance also provides contextual factors that shall be considered when determining whether the "loud, unnecessary or unusual noise" is disturbing the peace and quiet of the neighborhood or "caus[ing] discomfort or annoyance" to a reasonable person in the area. Moreover, as in Commonwealth v. Bohmer, supra at 373, the ordinance limits its application to acts that are willful. Given these standards and limitations, the ordinance is not unconstitutionally vague on its face.
"1. The level of the noise.
"2. The intensity of the noise.
"3. Whether the nature of the noise is usual or unusual.
"4. Whether the origin of the noise is natural or unnatural.
"5. The level and intensity of the background noise, if any.
"6. The proximity of the noise to residential sleeping facilities.
"7. The nature and zoning of the area within which the noise emanates.
"8. The density of the inhabitation of the area within which the noise emanates.
"9. The time of day or night the noise occurs.
"10. The duration of the noise.
"11. Whether the noise is recurrent, intermittent or constant.
"12. Whether the noise is produced by commercial or non-commercial activity."
As a result, we proceed to the as-applied challenge. In an as-applied challenge, "the question is whether the [ordinance], or, more closely, the particular words objected to, identify for citizens and law enforcement authorities a core of condemned conduct, and whether this case, as it shaped up, appears to be within the core: the inquiry is contextual." Commonwealth v. Schafer, 32 Mass. App. Ct. 682, 688 (1992), quoting from Commonwealth v. Love, 26 Mass. App. Ct. 541, 544-545 (1988). See Commonwealth v. Bell, 455 Mass. at 419, quoting from Commonwealth v. Williams, 395 Mass. 302, 304 (1985) ("A penal statute must 'define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement'"). "To determine whether the [ordinance] is unconstitutionally vague as applied, we view the evidence in the light most favorable to the Commonwealth." Commonwealth v. Nee, 83 Mass. App. Ct. 441, 449 (2013), citing Commonwealth v. Oakes, 407 Mass. at 95.
This ordinance makes it unlawful "to willfully make or continue, or cause to be made or continued, any loud, unnecessary or unusual noise which disturbs the p[ea]ce or quiet of any neighborhood or which causes discomfort or annoyance to any reasonable person of normal sensitiveness residing in the area." The ordinance further provides that "[t]he level of the noise," "[t]he intensity of the noise," "[t]he nature and zoning of the area," "[t]he density of the inhabitation of the area," "[t]he time of day or night the noise occurs," "[t]he duration of the noise," as well as "[w]hether the noise is recurrent, intermittent or constant" and "[w]hether the noise is produced by commercial or non-commercial activity" shall be considered. See note 4, supra. Here, the testimony at trial by the Commonwealth's witnesses indicated that the noise emanating from the front of Liberty Tax Service was so loud that it made it difficult to take a nap or to carry on a conversation between sixty and two hundred yards away, respectively. The testimony indicated that the defendants created, or caused to be created, noise that was constant throughout the afternoon in a mixed use densely populated area with both residential and commercial buildings. Finally, the defendants were warned by police before the citations issued that the noise was too loud and they needed to be quieter. A person of common intelligence would understand that this willful conduct violated the noise ordinance. There is no substantial risk of a miscarriage of justice.
The defendants also argue that the ordinance is overbroad and violates their First Amendment right to freedom of expression. This ordinance was "justified without reference to the content of the regulated speech," and therefore is content neutral. See Boston v. Back Bay Cultural Assn., 418 Mass. 175, 180 (1994) ("The judge ruled that the ordinance was content neutral because the city's purpose in creating the ordinance, i.e., maintaining quiet streets at certain hours, was completely unrelated to the content of any form of expression"). This type of ordinance is proper if it is "narrowly tailored to serve a significant governmental interest, and [if it] leave[s] open ample alternative channels for communication of the information." Id. at 179, quoting from Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). It is clear that the city "ha[s] a substantial interest in protecting its citizens from unwelcome noise." Boston v. Back Bay Cultural Assn., 418 Mass. at 180, quoting from Ward v. Rock Against Racism, supra at 796. Further, the section of the ordinance at issue is narrowly tailored by its terms because it only applies to noise that is "loud, unnecessary or unusual" and that "disturbs the p[ea]ce or quiet of any neighborhood or . . . causes discomfort or annoyance to any reasonable person of normal sensitiveness residing in the area." The city's objective was to limit noises that "are a detriment to public health, comfort, convenience, safety, welfare and prosperity of the residents." While the defendant may be correct that a noise ordinance that specifies a decibel level might be more precise, implementing such an ordinance would not make it more narrowly tailored. Finally, the ordinance leaves open ample alternative channels for communication of the information by using marketing techniques that do not create noise that violates the ordinance.
In addition, the defendants argue that there was insufficient evidence to convict either defendant of violating the ordinance on any of the dates in question and that the fines assessed were illegal. Both arguments lack merit. We have reviewed the record and the Commonwealth presented sufficient evidence for the jury to conclude that the defendants violated the noise ordinance on the specific dates alleged. In addition, the fine of $300 per criminal violation was a legal sentence pursuant to the ordinance, which provides that "[a]ny person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined Three Hundred ($300.00) Dollars . . . ." A 2004 ordinance cited by the defendants ("An Ordinance Establishing a Non-Criminal Disposition for Violations of Ordinances . . .") sets the appropriate fines for "non-criminal" dispositions. However, the latter schedule of fines did not supersede the specific provisions of the noise ordinance providing criminal penalties.
The defendant did not make an argument here concerning the "per se" violation of the noise ordinance for "use of any drums or other instruments or device for the purpose of attracting attention by creation of noise to any performance, show or sale." We do not address any sections of the ordinance which the defendants did not raise an argument about.
Judgments affirmed.
By the Court (Trainor, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 21, 2015.