Com. v. Hood

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation389 Mass. 581,452 N.E.2d 188
PartiesCOMMONWEALTH v. Paul HOOD (and three companion cases 1 ).
Decision Date05 July 1983

Page 188

452 N.E.2d 188
389 Mass. 581

Paul HOOD (and three companion cases 1).
Supreme Judicial Court of Massachusetts,
Argued Feb. 8, 1983.
Decided July 5, 1983.

Page 190

[389 Mass. 582] Charles J. Hayes, Norwell, for defendants.

Kevin J. Ross, Asst. Dist. Atty., for the Commonwealth.

Before [389 Mass. 581] HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

[389 Mass. 582] HENNESSEY, Chief Justice.

After a jury trial in a District Court, the defendants were convicted of trespassing, in violation of G.L. c. 266, § 120, and each was fined $50. 2 The fines [389 Mass. 583] were suspended pending appeal. We took the cases on our own motion. We affirm the judgments of conviction.

The facts are as follows. At 7:30 A.M., on December 21, 1981, approximately thirty people gathered in a public park across the street from the Charles Stark Draper Laboratory, Inc. (Draper), in Technology Square, Cambridge. At 8 A.M., they crossed the street and entered an outdoor courtyard on Draper premises. A Draper security officer ordered the group to leave, and everyone but the four defendants complied with his request. Security officers then asked each defendant to leave, and informed each defendant that if he or she did not leave, he or she would be arrested. There were also two "No Trespassing" signs posted in the courtyard. The defendants, however, remained on the premises, attempting to pass out leaflets to Draper employees. These leaflets, which were ruled inadmissible at a pretrial hearing, advocated nonviolence as a means to avert nuclear war.

In response to a summons by the security officers, three Cambridge police officers arrived at Draper and informed the defendants that they were trespassing and that if they did not leave the premises they would be arrested. The defendants remained, and were arrested about 8:30 A.M. The captain of the Draper security force, Thomas W. Murphy, testified that the premises on which the defendants were arrested are leased by Draper from a Boston real estate company and are maintained by Draper. The complex in which Draper is located is bounded on three sides by public roads and on the fourth by railroad tracks. Murphy testified that pedestrians and cars were permitted to pass through the complex, including Draper premises. He also testified that the defendants were asked to leave because they were leafletting.

The foreman of the jury delivered verdicts of guilty of trespass. He then stated, on behalf of the jury, that "these findings are based on a narrow interpretation of the law. We feel that there are important philosophical and perhaps moral questions that transcend the scope of this trial. We feel

Page 191

they should be debated in the broadest possible forum."

[389 Mass. 584] Prior to the trial, the Commonwealth filed motions in limine requesting that the judge exclude "evidence consist[ing] of the defendants' reason for being upon the premises alleged to have been trespassed, to wit: [distributing leaflets], and the content of said leaflets." The motion judge explained to the defendants, who proceeded pro se, that justification is a defense to a charge of trespass, but that if the reason the defendants were on the premises did not constitute legal justification it would be irrelevant, and so excluded. Hillegass read a brief statement on behalf of all the defendants indicating that, in accordance with their religious beliefs, they were present at Draper to try to halt the development of nuclear weapons. The judge then allowed the motions, except as to the defense of consent. Hood then asked whether the ruling meant "that we may not speak about our reasons for going to Draper during our trial," and the judge told him that that was correct.

The defendants raise four arguments on appeal. First, they claim that their convictions violated their rights to freedom of religion, speech, and assembly under the First and Fourteenth Amendments to the United States Constitution, and arts. 1, 16, and 19 of the Massachusetts Declaration of Rights, and their right to defend their lives and liberties under art. 1. In support of these contentions, they claim that the Draper premises were public under Federal constitutional principles, and that the judge's pretrial ruling denied them the opportunity to establish this fact. Second, they claim that their activities were protected under Commonwealth v. Richardson, 313 Mass. 632, 48 N.E.2d 678 (1943). Third, they assert that the judge erred in granting the Commonwealth's motions preventing the introduction of evidence as to justification. Finally, the defendants contend that the foreman's statement on behalf of the jury indicates that they were not found guilty beyond a reasonable doubt.

The guarantees of the First and Fourteenth Amendments apply to government action. See Hudgens v. NLRB, 424 U.S. 507, 521, 96 S.Ct. 1029, 1037, 47 L.Ed.2d 196 (1976); Meyer v. Massachusetts Eye & Ear Infirmary, 330 F.Supp. 1328, 1331 (D.Mass.1971); McQueen [389 Mass. 585] v. Druker, 317 F.Supp. 1122, 1127 (D.Mass.1970), aff'd, 438 F.2d 781 (1st Cir.1971). In Commonwealth v. Noffke, 376 Mass. 127, 134, 379 N.E.2d 1086 (1978), we relied on Federal constitutional law in holding that arts. 16 and 19 did not protect the activities of a nonemployee soliciting for a labor union in the parking lot of a private hospital, because "[arts.] 16 and 19 protect the rights of free speech and assembly from abridgment by the government." Subsequently, in Batchelder v. Allied Stores Int'l, Inc., 388 Mass. 83, 89, 445 N.E.2d 590 (1983), we "reject[ed] any suggestion that the Declaration of Rights should be read as directed exclusively toward restraining government action." Specifically, we held that art. 9 protects the collection of signatures to obtain access to a ballot, in the common area of a privately owned shopping mall. We noted that Noffke was decided before the Supreme Court held in PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 2035 (1980), "that States were free to fashion their own constitutional principles concerning the exercise of free speech in the common areas of large shopping malls." Batchelder v. Allied Stores Int'l, Inc., supra at 89-90 n. 8, 445 N.E.2d 590.

Batchelder did not establish that there is no State action requirement under arts. 16 and 19. We stated: "It is important that we carefully define the issue that this case presents. We are concerned with ballot access and not with any claim of a right to exercise free speech rights apart from the question of ballot access." Batchelder v. Allied Stores Int'l, Inc., supra at 91, 445 N.E.2d 590. Moreover, even if State action were not required, Batchelder does not suggest that we would extend the protections of arts. 16 and 19 to the instant cases. The plaintiff's conduct in Batchelder occurred in a large shopping mall, visited on the average by 175,000 to 200,000 people

Page 192

each week. The mall scheduled special events weekly, to attract customers and to create goodwill in the community. In Batchelder, supra at 89-90 n. 8, discussing Noffke, we recognized that "[t]he difference between the parking lot of a private hospital and the common area of a multiestablishment shopping center is significant." Cf. State v. Schmid, 84 N.J. 535, 563-569, 423 A.2d 615 (1980), appeal dismissed[389 Mass. 586] sub nom. Princeton Univ. v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982); Commonwealth v. Tate, 495 Pa. 158, 173-176, 432 A.2d 1382 (1981). In the instant cases, the defendants were distributing leaflets on the property of a private business, during its regular business hours, and while business was apparently being conducted as usual. The fact that members of the public were allowed to pass through Draper's property does not change the essential nature of the premises. 3

The defendants attempt to improve their position by showing that Draper was public property under Federal constitutional principles. They first argue that the facts of their cases are similar to those of Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). Marsh held that, under the First and Fourteenth Amendments, a State could not prosecute a person for trespassing based on her attempts to distribute religious literature on the premises of a company-owned town. The Court reasoned that, although the town was privately owned, it was subject to the strictures of the First Amendment because the operation of a town is a public function. Marsh v. Alabama, supra at 505-510, 66 S.Ct. at 278-280. "Whether a corporation or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free." Id. at 507, 66 S.Ct. at 279.

Marsh is inapplicable to the instant cases. Draper is a place of business, and operating a business is not a public function, but rather is a traditionally private endeavor. The fact that Draper allowed pedestrians and cars to pass through its property does not alter the public function analysis. A business need not wall itself in order to maintain nonpublic status. The crux of the matter is that the conduct of a private business such as Draper does not implicate[389 Mass. 587] the public interest to the extent that its premises may be deemed public under a public function theory. This is made even clearer by subsequent cases, which limit the scope of Marsh. In Hudgens v. NLRB, 424 U.S. 507, 513-521, 96 S.Ct. 1029, 1033-1037, 47 L.Ed.2d 196 (1976), the Court held that the First and Fourteenth Amendments did not protect employees picketing a company's retail store located in an enclosed shopping mall. Quoting from an earlier opinion, Lloyd Corp. v. Tanner, 407 U.S. 551, 568-569, 92 S.Ct. 2219, 2228-2229, 33 L.Ed.2d 131 (1972), the Court rejected the argument that "a large shopping center ... 'open to the...

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