Commw. v. Sholley, P-365
| Decision Date | 28 January 2000 |
| Docket Number | P-365 |
| Citation | 726 N.E.2d 415 |
| Parties | (Mass.App.Ct. 2000) COMMONWEALTH, v. EARL SHOLLEY No.: 98- |
| Court | Appeals Court of Massachusetts |
Present: Perretta, Greenberg, & Lenk, JJ.
Threatening. Idle and Disorderly Person. Disruption of Court Proceedings. Statute, Construction. Evidence, Cross-examination, Bias, Prior misconduct, Relevancy and materiality, State of mind. Words, "Threatened," "Disrupt."
Complaint received and sworn to in the Quincy Division of the District Court Department on June 25, 1996.
The case was tried before Paul F. X. Moriarty, J.
John J. Amendolare for the defendant.
Patrick C. Lee, Special Assistant District Attorney, for the Commonwealth.
In 1996, one Raymond Barrio was charged in the Quincy Division of the District Court Department of violating a protective order issued pursuant to G. L. c. 209A. The defendant, Earl Sholley, a self-described "father's rights activist" was present in the courtroom during the first day of Barrio's bench trial. On the next day, after Barrio had been found guilty, Sholley came into the courthouse and peeked through the window of the door to the same courtroom. Stationed inside was a court officer, Kirk Parks, who saw Sholley standing just outside in the hallway. Parks asked Sholley if he needed help. After boisterous conversation, more fully described in the margin,1 Parks decided to remove Sholley from the courthouse building. Sholley was more or less compliant in leaving the courthouse. He was subsequently arrested outside the building.
Sholley was convicted by a jury of six 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). We deal with Sholley's appeal, in which he complains of the judge's denial of motions for required findings of not guilty and of certain evidentiary rulings.
1. Threatening to commit a crime. Sholley argues that his motion for required finding of not guilty on the threatening charge should have been allowed as evidence of both the intention and ability to carry out the threat were insufficient within the meaning of G. L. c. 275, 2.2
An oft-quoted United States District Court decision defines the word "threatened" as it appears in the statute: Robinson v. Bradley, 300 F. Supp. 665, 668 (D. Mass. 1969). Massachusetts courts have referred to this definition approvingly in several cases. See Commonwealth v. Chalifoux, 362 Mass. 811, 816 (1973); Commonwealth v. Daly, 12 Mass. App. Ct. 338, 339 n.1 (1981); Commonwealth v. Ditsch, 19 Mass. App. Ct. 1005 (1985). More than that, the decisional law requires that the threat be made in circumstances that would reasonably justify apprehension on the part of an ordinary person. See Commonwealth v. Corcoran, 252 Mass. 465, 482-483 (1925); Commonwealth v. Strahan, 39 Mass. App. Ct. 928, 929 (1995).
Viewed in a light most favorable to the government, without weighing contrary evidence presented by the defense, Commonwealth v. Kelley, 370 Mass. 147, 150 & n.1 (1976), the findings which the evidence warranted, e.g., Sholley's tantrum about the outcome of the Barrio case and his disquieting remarks about the judge, by themselves, are not sufficient to offend the statute. Sholley's reaction was out of line, but his initial remarks were not directed to anyone in particular. However, other remarks he made on the stairs as he descended to the main exit door of the courthouse were overheard by Courtney Cahill, the prosecutor in the Barrio case. She had heard some shouting on the second floor and headed up the stairs to see what was happening. As Cahill came up the stairs within earshot of Sholley, she heard him yelling, Within seconds they came abreast of each other on the stairwell. Sholley stopped and pointed his finger at her, saying angrily, "Watch out counselor." Cahill testified that she was "extremely frightened." She quickly ascended the stairs to get away. While Sholley's final warning to Cahill did not itself constitute a threat to commit a specific crime, Cahill testified that several months before this episode, she had received several pieces of mail from an organization styling itself "Father's Rights Coalition." Sholley had authored some of the articles. In these circumstances, the words "watch out counselor," "must be interpreted in the context of the actions and demeanor which accompanied them; when viewed together they may constitute the requisite expression [of intention to do bodily harm], and may indicate additionally, . . . ability and apprehension." Commonwealth v. Elliffe, 47 Mass. App. Ct. 580, 582 (1999).3 Cf. Commonwealth v. Delgado, 367 Mass. 432, 437 (1975) ().
The instant case is similar to the Strahan case, 39 Mass. App. Ct. 928 (1995), where the defendant, an animal rights activist who regularly picketed the New England Aquarium (Aquarium) in Boston, transgressed the statute by saying to an Aquarium employee, "I am assessing the enemy," and "I'm just looking for, for a place to put a hole in the boat." The Aquarium employee took the defendant's remarks as a threat to sink a whale-watching vessel which was docked nearby. The employee was familiar with the defendant's history at the Aquarium. That was sufficient to get the case to the jury.
In the case before us, as in Strahan, Sholley's intention to bully Cahill may be inferred from his past history with the Quincy court, his presence in the courtroom during the Barrio trial, as well as his menacing gesture. As to his ability to carry out the threat, it is true that at the time he addressed her, he was being followed by Parks. There were other persons in the courthouse hallway to keep her from harm's way. Yet these circumstances did not mean that Sholley could not have carried out his threat at a later time. Cahill was justifiably apprehensive that he might do so. See Commonwealth v. Ditsch, 19 Mass. App. Ct. 1005 (1985) ().
2. Disorderly person. The provision in G. L. c. 272, 53, as amended through St. 1973, c. 1073, 20, for the punishment of "idle and disorderly persons," as construed in Alegata v. Commonwealth, 353 Mass. 287, 304 (1967), encompasses one who "engages in fighting or threatening, or in violent or tumultuous behavior," or who "creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." Commonwealth v. A Juvenile, 368 Mass. 580, 587-595 (1975). See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). In other words, the Commonwealth must "prove that the defendant's conduct served no legitimate purpose when it claims that the defendant created a hazardous or offensive condition." Commonwealth v. Sinai, 47 Mass. App. Ct. 544, 548 (1999). Contrast Commonwealth v. Zettel, 46 Mass. App. Ct. 471, 475-476 (1999).
Unlike the situation in those cases, here there was no fighting behavior or struggle or other evidence that the defendant acted without legitimate purpose. When Sholley was first observed by the court officer, he made no threat to use force or violence. His clarion call for "war" against the judicial system was not objectively possible of immediate execution. Then came his scornful epithets against the judge: "You mean that . . . fuckin' bitch sent him back to jail?" Words alone, however, including vulgar, profane and offensive speech, do not constitute conduct cognizable as disorderly conduct, see Commonwealth v. Richards, 369 Mass. 443, 446 n.2 (1976), and the mere use of obscenities in a public place does not make out the crime of disorderly conduct. Commonwealth v. A Juvenile, 368 Mass. at 583. Finally, Sholley's exit from the courthouse to the street was voluntary, and at the time of his arrest, he was simply handing out literature a few blocks away. This was a legitimate exercise of his rights under the First Amendment to the United States Constitution. He was warned only after his departure from the courthouse that his continued picketing would result in an arrest for disorderly conduct. These circumstances do not place his conduct within the reach of the statute. Compare Commonwealth v. A Juvenile, 368 Mass. at 583, where the defendant created a disturbance by screaming opprobrious epithets at a saleswoman in a retail store, causing other employees and shoppers to gather. The court held that "convictions may no longer be constitutionally obtained under 53 for the offense . . . in circumstances where the offensive and abusive language is relied on as proof of the offense." The court added that the "First and Fourteenth Amendments must be taken to disable the States from punishing public utterances of . . . unseemly expletive[s] in order to maintain . . . a suitable level of discourse within the body politic." Id. at 589-590, quoting from Cohen v. California, 403 U.S. 15, 23 (1971). The quoted phrases apply to this case because Sholley's angry protests both inside and outside of the courthouse had not threatened a breach of the peace. This is apparent from the testimony of the arresting officer, Barbara DiNatale, who testified that her reason for arresting Sholley for disorderly conduct was "[t]he yelling . . . plus the words that he was using." In short, Sholley's conduct did not fall within the ambit of the statute.4
3. Disruption of court proceeding. The defendant argues that to convict him under G....
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