Commonwealth v. Sholley

• Decision Date: 06 October 2000
• Parties: COMMONWEALTH v. EARL SHOLLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

432 Mass. 721

739 NE 2d 236

COMMONWEALTH v. EARL SHOLLEY.

Supreme Judicial Court of Massachusetts, Norfolk.

October 6, 2000.

November 30, 2000.

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

John J. Amendolare for the defendant.

Patrick C. Lee, Special Assistant District Attorney, for the Commonwealth.

SOSMAN, J.

Earl Sholley was convicted of threatening to commit a crime (G. L. c. 275, § 2), being a disorderly person (G. L. c. 272, § 53), and disrupting court proceedings (G. L. c. 268, § 13C). The Appeals Court affirmed the conviction of threatening to commit a crime, but reversed the conviction of being a disorderly person (on the ground that the defendant's conduct did not come within the ambit of G. L. c. 272, § 53) and the conviction of disrupting court proceedings (on the ground that there was no evidence that any particular proceeding had been disrupted). Commonwealth v. Sholley, 48 Mass. App. Ct. 495, 504 (2000). We granted the parties' applications for further appellate review. We affirm the convictions of threatening to commit a crime and being a disorderly person and reverse the conviction of disrupting court proceedings.

1. Facts. At the time of the incident giving rise to these convictions, Earl Sholley was active in an organization dedicated to "fathers' rights." This organization was critical of what it viewed as the court system's unfair treatment of fathers and husbands in domestic relations and domestic violence cases. Sholley and other members of the group had expressed their criticism by various methods, including demonstrations and leafletting in the vicinity of the Quincy Division of the District Court Department.

Prosecutions of domestic violence cases in the Quincy District Court were conducted principally by Assistant District Attorney Courtney Cahill, and some of Sholley's protest activities had specifically targeted Cahill as the prosecutor responsible for what he and his organization perceived as unfair verdicts and sentences. Cahill was aware of Sholley's involvement in the demonstrations protesting her work on such cases and was aware of Sholley's passionate views on the subject.

On June 24 and 25, 1996, Raymond Barrio was being tried in the Quincy District Court on a charge of violating a restraining order. Cahill was prosecuting the case. Sholley and his organization supported Barrio and viewed his trial as another example of the court's unfairness toward men.¹ Sholley had attended the first day of the trial, but was not in the court room the next day when the jury returned a verdict of guilty and the judge sentenced Barrio to a term of incarceration.

After the proceedings had concluded, Sholley arrived and looked into the court room, located on the second floor of the court house. The court officer, Kirk Parks, came out to see what Sholley wanted. Sholley asked Court Officer Parks what had happened to the Barrio case, and Parks informed Sholley of the verdict and sentence. On hearing that Barrio had been sent to jail, Sholley began shouting and yelling in a manner that Parks described as "out of control."² When Parks asked Sholley to keep his voice down, Sholley yelled even more loudly in a tone of voice that witnesses described as "screaming."

Parks directed Sholley to leave the building. Sholley proceeded to run through the corridor and down the stairway, still yelling and screaming, followed by Parks.³ As Sholley reached the top of the stairs, he shouted, "This means war! There's going to be bloodshed all over the streets!" Sholley yelled out this particular exclamation several times.

When Sholley's outburst started, Cahill was on the first floor of the court house handling bails and arraignments in the first session. She was at the door in front of the first session court room speaking with another attorney when she heard what she described as "a huge commotion upstairs." She had supervisory responsibility over other assistant district attorneys and, on hearing this "huge commotion," Cahill's assessment was that she "needed to go upstairs and make sure that everything was okay with the other [assistant district attorneys]." Accordingly, she broke off her discussion with the attorney and started up the stairway to the second floor. Sholley was running down the stairs as Cahill was climbing up. When he encountered Cahill on the stairway, Sholley stopped, pointed his finger at Cahill's face, and yelled, "Watch out, Counselor." Cahill testified that Sholley was "[i]nches" from her at the time and that this remark was yelled "in an angry tone." Cahill recognized Sholley from his prior protest activities and knew that he had been at the court house the previous day to support Barrio. She testified that she was "extremely frightened" by Sholley's statement and gesture and that she continued up the stairs "to get away from him."

Meanwhile, others in the court house also responded to this commotion. When Sholley's yelling began, Parks saw people "peeking out" of offices and out of the other second-floor court room, apparently trying to see what was happening. On the first floor, various people came rapidly out of the first session court room and stopped to watch Sholley. Others came out of the first floor probation office.

Detective Barbara DiNatale, a police prosecutor, was going down the stairs when Sholley ran past her "screaming" about "war" and "bloodshed." She "pursue[d]" him outside. Three other police officers, who had been at the court house to testify in other proceedings, also responded and followed outside with Detective DiNatale and Court Officer Parks.⁴

Once outside the court house, Sholley began passing out his group's literature. He approached a court employee who was outside on her break and insisted that she take the materials he was handing out. When she refused, he said, "Remember what happened in Oklahoma. This is a bomb ready to explode." The employee was frightened by Sholley's remark.

Detective DiNatale then spoke to Sholley, advising him that she could arrest him and asking him to leave the area. After a brief conversation with DiNatale, during which Sholley asked DiNatale what he had done that was disorderly and DiNatale related to him the conduct she had observed that she considered disorderly, Sholley proceeded up the street to Quincy Square, where he continued handing out leaflets.

The total time elapsed, from the commencement of Sholley's yelling to his departure from the area, was two to three minutes.

2. Threatening to commit a crime. "The elements of threatening a crime include an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat." Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). Sholley argues that the only words he directed at Cahill (i.e, the phrase, "Watch out, Counselor") do not express any intent to commit a crime. Thus, he contends that he was entitled to a required finding of not guilty on the threats charge.

The assessment whether the defendant made a threat is not confined to a technical analysis of the precise words uttered. Rather, the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances. For example, in Commonwealth v. Elliffe, 47 Mass. App. Ct. 580, 582 (1999), the victim had brought parental kidnapping charges against her former husband. As the kidnapping case was progressing, the victim claimed that the defendant had come to her house, assaulted her, and told her in an angry voice, "Drop the charges." Id. at 581-582. The defendant argued that there was nothing threatening in the words, "Drop the charges." Id. at 583. Noting that the words were to be viewed "in the context of the actions and demeanor which accompanied them," the Appeals Court held that the evidence was sufficient to make out a case of threatening to commit a crime. Id. at 582. Similarly, in Commonwealth v. Strahan, 39 Mass. App. Ct. 928 (1995), the defendant, a known environmental activist who had been protesting whale-watching excursions, was asked by the ship's mate to step down off the gangplank of a whale-watching boat. The defendant replied that he was "assessing the enemy" and that he was "just looking for, for a place to put a hole in the boat." Id. at 929. The Appeals Court rejected the defendant's technical "parsing" of his words, opining that the words should not be "taken in isolation from his other statements and the context in which they were made." Id. See Commonwealth v. DeVincent, 358 Mass. 592, 595 (1971) (in prosecution of attempted extortion, issue whether defendant's statement constituted threat of bodily injury not governed by "the dictionary definition of the words used" or by their meaning "in the abstract" but rather was to be viewed in light of "the circumstances attending their use" and "context").

Here, the context of the defendant's statement, along with his demeanor and tone of voice at the time the statement was made, would permit the jury to conclude that the statement was intended as a threat. Based on his belief that Barrio had been wrongly convicted and unjustly imprisoned a second time, Sholley was enraged at the court system when he encountered Cahill, the prosecutor who was, in Sholley's view, responsible for this ostensible miscarriage of justice. He was "yelling" and "screaming" in an angry tone of voice, he had just been crying out a prediction of "war" and "bloodshed," and he stood only inches from Cahill pointing his finger in her face. In that context, the advice to "[w]atch out" may be interpreted as an expression of an intention to harm Cahill.⁵ Cahill testified that is how she understood the remark, characterizing it as a warning that she should "watch [her] back." She also testified that she was "extremely frightened" as a result, and, given the context of the statement and the...