Massachusetts Criminal Disorderly Conduct Obscenities Lawyers Attorneys

COMMONWEALTH vs. HERTZL SINAI.

APPEALS COURT OF MASSACHUSETTS

May 11, 1999, Argued

August 5, 1999, Decided

The defendant conceded he did not but explained that he was driving a rental car, he did reside in Plymouth, and his sticker was on his own car, which was being repaired. Milner said that without a sticker the defendant would have to pay the five-dollar parking fee whereupon the defendant began yelling obscenities and slurs at Milner and said he wasn't going to pay the fee. Milner then asked police officer Higgins, who was standing nearby, for assistance. At some point after the defendant continued to refuse to pay the fee or leave, Higgins told the defendant he was placing him under arrest for disorderly conduct and asked the defendant to shut off his car engine and step out of the car. When Higgins opened the defendant's car door, the defendant threw a punch at Higgins so that he could shut his car door. As a result, Higgins backed off and called for assistance from other officers. The other officer approached the defendant and told him he was under arrest and to step out of the vehicle. The defendant continued to resist by flailing his arms about and attempting to strike officer Correa. The defendant was eventually handcuffed and placed in the police cruiser. The defendant was found guilty by a jury in the District Court of being a disorderly person under G. L. c. 272, 53. On appeal, he claims that the District Court judge erred in failing to instruct the jury that the Commonwealth must prove beyond a reasonable doubt that the defendant's conduct could not have served any legitimate purpose, including the exercise of First Amendment rights, and in failing to allow the defendant's initial motion for a required finding of not guilty.

Issues:

Whether the defendant conduct was a disorderly conduct under G. L. c.272, 53?

Whether the trial judge committed error in failing to instruct the jury that the Commonwealth must prove beyond a reasonable doubt that the defendant's conduct could not have served any legitimate purpose, including the exercise of rights under the First Amendment to the United States Constitution?

Discussion:

The Court finds that the judge on three occasions informed the jury that one of the elements the Commonwealth must prove beyond a reasonable doubt is that the defendant engaged in at least one of the following actions: "he either engaged in fighting or threatening, or engaged in violent or tumultuous behavior, or created a hazardous or physical offensive condition by an act that served no legitimate purpose . . . Such an instruction comports with the specific conduct as constituting disorderly conduct. The judge further specifically instructedthe jury that "you cannot convict on speech alone. No matter how coarse, how offensive, or how abusive that speech may be. For speech alone, as a matter of law, does not and cannot constitute disorderly conduct unless it is your determination that they are fighting words or threats." This instruction adequately conveyed to the jury that the defendant could not be convicted based solely on the exercise of his First Amendment rights. A trial judge is not required to instruct the jury in the terms requested by a defendant so long as the substance of the requested instructions is adequately covered. When the judge's instructions are read as a whole, the jury was properly instructed on the elements required for proof of disorderly conduct. Apart from any evidence of speech or expressive conduct, when the evidence in this case is viewed in the light most favorable to the Commonwealth a rational fact finder could find that the defendant's conduct did, indeed, constitute fighting or tumultuous conduct which was committed with the purpose of causing public inconvenience, annoyance or alarm or recklessly creating a risk thereof. The judgedid not err in denying the motion.

Conclusion:

This Court affirmed, since the appellant was charged with fighting or tumultuous behavior, which did not require proof that appellant's conduct had no legitimate purpose, and there was no substantial risk of a miscarriage of justice where the jury was cautioned that closing arguments were not evidence and the prosecutor's comments were no more than enthusiastic rhetoric.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

Massachusetts Criminal Disorderly Conduct Obscenities Lawyers Attorneys

By: Atchuthan Sriskandarajah

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