Commonwealth v. Chou

• Citation: 433 Mass. 229,741 NE 2d 17
• Parties: COMMONWEALTH v. PEACE CHOU.
• Decision Date: 06 October 2000
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

433 Mass. 229

741 NE 2d 17

COMMONWEALTH v. PEACE CHOU.

Supreme Judicial Court of Massachusetts, Middlesex.

October 6, 2000.

January 22, 2001.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & SOSMAN, JJ.

Mark W. Helwig for the defendant.

Jennifer C. Roman, Assistant District Attorney (Margaret A. Peterson, Assistant District Attorney, with her) for the Commonwealth.

SPINA, J.

The defendant, Peace Chou, was convicted of accosting or annoying a person of the opposite sex with offensive and disorderly acts or language. G. L. c. 272, § 53.¹ On appeal he claims that the judge improperly denied his motion for a required finding of not guilty, arguing that (1) his language and conduct were not "disorderly"; (2) as applied, the annoying or accosting provision of § 53 criminalizes his speech in violation of his rights under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution; and (3) as applied, the provision violates the equal protection clause of the Fourteenth Amendment to the United States Constitution and art. 1 of the Massachusetts Declaration of Rights because it punishes only those who accost or annoy persons of the opposite sex. We transferred the case to this court on our own motion and affirm the judgment of conviction.

1. Facts. In October, 1997, the defendant, then eighteen years old, produced a number of "missing person" flyers identifying and describing a young woman he had dated for approximately three weeks. The young woman, a high school student, "had broken up" with the defendant some weeks before. Determined to "get back" at her, the defendant sneaked into her school one night and hung several flyers at various locations.

The word "MISSING" is printed in large type across the top of the flyer beneath which is the young woman's name; a large photograph of her fills the right-hand corner of the flyer. Her "Race" is listed as "White Slut." The description of the victim includes the following statements: "Will respond to: `Cum to daddy, Urin;' Favorite Song: `Put it in the mouth'; Favorite drink: protein rich semen; ... Most recent employer: BJs Wholesale Club; ... Other distinguishing characteristics: Has a nipple ring; Extremely loose; Has trouble sitting down because of numerous penetrations; Ass itches & bleeds violently; ... Gets passed around (sometimes for free) like you wouldn't believe." The victim's guidance counsellor was so concerned that the police were contacted when the flyer was brought to her attention.

The defendant did not contest the Commonwealth's evidence that he made or hung the flyers. The victim testified that she was very upset by the language on the flyer, and felt violated by its display at her school. She was also afraid, as the defendant had threatened to hit her at least once during their brief relationship and he had telephoned her in anger about the breakup a few weeks before he posted the flyers. After the incident the victim suffered from nightmares in which the defendant chased her with a gun.

2. Disorderly acts or language. The defendant argues that neither his acts nor his language was disorderly within the meaning of the statute.²

Section 53 can be traced to colonial and provincial acts. Commonwealth v. Diamond, 248 Mass. 511, 514-517 (1924). The provision as to accosting or annoying was added to Rev. L. c. 212, § 46 (1902), when it was rewritten in 1914. St. 1914, c. 743. See Commonwealth v. Lombard, 321 Mass. 294, 295 (1947). The Lombard case is the only decision that has construed this provision. In that case the court held that "offensive" and "disorderly" were separate and distinct elements of the crime, both of which had to be pleaded and proved, but the case did not provide an opportunity to define either term. Id. at 296. In Alegata v. Commonwealth, 353 Mass. 287 (1967), we engrafted the Model Penal Code definition of "disorderly" onto the separate § 53 offense of being an idle and disorderly person.³Id. at 304. Model Penal Code § 250.2 (Proposed Official Draft 1962). In Commonwealth v. A Juvenile, 368 Mass. 580, 581, 599 (1975), again construing the disorderly person provision, we limited the adopted portion of the Model Penal Code definition to § 250.2(1)(a) and (c), because § 250.2(1)(b) suffered from the same constitutional infirmities as similar disorderly conduct statutes held to be facially overbroad in the Supreme Court's then recent First Amendment decisions. Id. at 593. By virtue of the prefatory language of the definition of "disorderly" in the Model Penal Code, a prosecution under the disorderly person provision also requires that the conduct have a public element or impact.⁴Id. at 596. The resulting definition of "disorderly" for purposes of the disorderly person provision of § 53 includes only those individuals who, "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... : (a) engage[] in fighting or threatening, or in violent or tumultuous behavior; or ... (c) create[] a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." See Commonwealth v. Sholley, 432 Mass. 721, 727 n.7 (2000); Commonwealth v. Richards, 369 Mass. 443, 446 & n.2 (1976).

Commonwealth v. A Juvenile, supra, did not present the question, nor did we discuss, whether the word "disorderly" should have the same meaning in both the disorderly person and the accosting and annoying provisions of § 53. Where, as here, the various and sundry crimes under a single statute are as different as they are similar, we look to the same source to construe the same word but tailor the construction to fit the particular crime charged, ever mindful of ordinary usage and legislative purpose. See Hanlon v. Rollins, 286 Mass. 444, 447 (1934). Cf. Arlington Hous. Auth. v. Secretary of Communities & Dev., 409 Mass. 354, 359 (1991) (concluding that, while same word may have same meaning, scope of its operation may differ in different parts of statute).

Whereas disorderly conduct under the disorderly person provision must have a public impact, the crime of accosting or annoying a person of the opposite sex evinces a legislative intent to criminalize offensive and disorderly conduct or language that has a personal and private, rather than a necessarily public, impact. This reading is supported by Commonwealth v. Lombard, supra at 295-296, in which we held that a 1943 amendment to the provision striking the phrase "in public places" indicated a clear legislative intent that it apply even to "[an] offence ... committed ... within the walls of a private residence." Cf. G. L. c. 269, § 14A ("Whoever telephones another person ... for the sole purpose of harassing, annoying or molesting such person or his family ..."). A wholesale engrafting of the limiting prefatory language of the Model Penal Code's definition of "disorderly" onto the accosting or annoying provision would not square with either the holding in the Lombard decision or the express elements of the crime of accosting or annoying. We therefore hold that, for purposes of this § 53 offense, "disorderly" acts or language are those that involve fighting or threatening, violent or tumultuous behavior, or that create a hazardous or physically offensive condition for no legitimate purpose of the actor, whether the resulting harm is suffered in public by the public or in private by an individual.

Applying our definition, we do not perceive any fighting, or violent or tumultuous behavior, in the flyer's unaltered photograph and sexualized description of the victim, nor in the defendant's conduct in creating or hanging the flyer at the school during the night. See Commonwealth v. Sholley, supra at 729; Commonwealth v. A Juvenile, supra at 597. We also conclude that neither the flyer's content nor the defendant's conduct in creating or hanging the flyer could have been found to create a hazardous or physically offensive condition as our courts have construed those terms. See Commonwealth v. Feigenbaum, supra at 475 (blocking tow truck and disregarding police warnings to move "created a hazardous condition"); Commonwealth v. LePore, 40 Mass. App. Ct. 543, 548 (1996) (voyeurism "created a physically offensive condition").

This case turns, then, on whether the content of the flyer may be characterized as threatening. Sexually explicit language, when directed at particular individuals in settings in which such communications are inappropriate and likely to cause severe distress, may be inherently threatening. Cf. Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995) (offensive speech in context of violating protective order under G. L. c. 209A "placed the victim in reasonable apprehension of imminent serious physical harm [and therefore] is equivalent to the crime of assault"). A sexually explicit poem written by a male prisoner and handed to a female staff member was held to be a threat where the inmate had, prior to the incident, indicated in clear language and behavior that he found her attractive and wanted to see her once he was paroled. Gomes v. Fair, 738 F.2d 517, 524, 526-527 (1st Cir. 1984) ("sexual proposition need not ripen into a physical assault before prison officials can take steps"). We recognize the heightened deference granted to prison administrators on matters of prison security and do not suggest that the standards for evaluating sexually charged language in such a case be extended beyond the prison walls. However, we are persuaded that that court's conclusions regarding the reasonableness of acknowledging and responding to threats inherent in certain sexually explicit communications are consistent with decisions by other courts confronted with similar materials in nonprison contexts. See Commonwealth v. Miller, 385 Mass. 521, 525, 526 (1982) (threat to circulate photograph of...