Opinion
No. 11–P–1770.
2013-07-2
COMMONWEALTH v. Mariann GARDNER.
By the Court (CYPHER, GRAHAM & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Mariann Gardner, appeals after a trial by jury from her conviction of being a disorderly person in violation of G.L. c. 272, 53. The defendant was sentenced to six months in a house of correction, fifteen days to serve with the balance suspended for eighteen months. A motion to stay execution of the sentence was denied by the judge, but allowed by a single justice of this court.
Background. The jury could have found that the Weymouth police responded to House Rock Park to investigate an anonymous call about a person with a handgun. The police found two parked vehicles with occupants, one male standing next to one of the cars, and two males by the basketball court. One of the vehicles had arrived at the park with four teenage occupants including two of the defendant's sons. Although a weapon was not found, during the investigation one of the defendant's sons threw a small amount of marijuana into some bushes. The police told him to call his mother and ask her to come to the scene and take him home. When the defendant and her daughter arrived at the scene, one officer was in the vicinity of the two vehicles, while other officers were searching the area and talking to witnesses. The defendant's mother and her daughter were instructed by the officer to stay away from the vehicle containing her sons. Nevertheless, mother and daughter approached the vehicle, one on each side. The officer approached the daughter and directed her to return to her vehicle. Eventually, she complied. The officer then approached the defendant, who was standing by the passenger side of the vehicle, and told her to return to her vehicle. She ignored the officer's direction. The officer put his left hand on her right arm, and according to the officer, she spun around with clenched fists. The officer turned her around and pressed her against the vehicle. She was arrested and placed in the back seat of a police cruiser. Discussion. Sufficiency of the evidence. In order to convict a person of disorderly conduct, the Commonwealth must prove three elements beyond a reasonable doubt: (1) that the defendant engaged in either fighting or threatening, or violent or tumultuous behavior, or created a hazardous or physically offensive condition by an act that served no legitimate purpose; (2) that her actions were reasonably likely to affect the public; and (3) that she intended to cause public inconvenience, annoyance or alarm, or recklessly created such a risk. See Commonwealth v. Chou, 433 Mass. 229, 232 (2001). The Commonwealth argues that when a person faces an officer with clenched fists, it is sufficient to permit an inference that the person is engaged in fighting or threatening behavior within the meaning of the first prong of element one. However, without some further indication of hostile intent by means of words or conduct, such as swinging or lunging at the police officer, shouting obscenities, or throwing something, the evidence of clenched fists is insufficient to warrant an inference that the defendant was making a threat or engaging in fighting behavior. In the present case, there is no evidence that when the defendant turned around, she took any steps toward the officer or spoke any words indicative of a threat or an intent to engage in combat.
Alternatively, the Commonwealth relies on Commonwealth v. Bosk, 29 Mass.App.Ct. 904 (1990), where a defendant who had been stopped for speeding during the early morning hours on Route 2 westbound in Fitchburg and was issued a citation exited his vehicle, walked over to the State police trooper's vehicle, dropped the citation into the trooper's lap, and demanded to see the radar detector. After being told that it was unsafe to stand in the breakdown lane and to get back inside his vehicle “four or five times,” the trooper informed the defendant that if he did not return to his vehicle he would be arrested. The defendant refused to comply and was arrested. Id. at 906–907. In affirming the conviction, we explained that the case was distinguishable from Commonwealth v. Feigenbaum, 404 Mass. 471 (1989), where the Supreme Judicial Court reasoned that although the defendant had consciously disregarded a risk of public inconvenience, annoyance, and alarm, and created a hazardous condition by blocking a tow truck and disregarding warnings to move during a political protest, his conduct could not be punished under G.L. c. 272, § 53. Id. at 906. “[T]he Commonwealth offered no evidence to show that the defendant's actions were taken without legitimate purpose.... [A]lthough conduct that is designed to call attention to a political cause, and may therefore have a legitimate purpose, may nevertheless be criminal under the common law or by some statute, it does not constitute disorderly conduct under G.L. c. 272, § 53. Feigenbaum, supra at 475. The rationale of Feigenbaum is not confined to people engaged in political protests. See Commonwealth v. Zettel, 46 Mass.App.Ct. 471, 475–76 (1999). In the present case, it is significant that the defendant was invited to the scene by the police to pick up her son. In Zettel, a mother, who, when picking up her son at school refused to move her car, which was blocking traffic, was not guilty of being a disorderly person. Id. at 472, 476. As in Zettel, it cannot be said on the specific facts of this case that the defendant's conduct served no legitimate purpose.
The result we reach should not be understood to mean that so long as a person has a legitimate purpose for being in a location that she is not required to obey lawful commands by the police, and, if arrested, to submit to the authority of the police. See Commonwealth v, Moreira, 388 Mass. 596, 600 (1983).
The judgment of conviction for being a disorderly person is reversed, and the verdict is set aside. Judgment is to enter for the defendant.
This disposition makes it unnecessary for us to consider the applicability of Commonwealth v. Dotson, 462 Mass. 96 (2012), and what remains of the doctrine of amelioration. See Commonwealth v. Wyman, 12 Cush. 237, 239 (1853); Commonwealth v. Vaughn, 329 Mass. 333, 339 (1952).
So ordered.