COMMONWEALTH vs. JAMES A. RICHARDS. (and four companion cases [Note 1]).

HENNESSEY, J. The three defendants were found guilty on all complaints, after trial before a judge of the Municipal Court of the City of Boston, as follows. Isaac Richards: disorderly person, G. L. c. 272, Section 53; drinking intoxicating liquor in public in violation of a city ordinance; assault and battery on a police officer, G. L. c. 265, Section 13D. James A. Richards: disorderly person, G. L. c. 272, Section 53; assault and battery on a police officer, two counts, G. L. c. 265, Section 13D. Ocie Elder: disorderly person, G. L. c. 272, Section 53; assault and battery on a police officer, two counts, G. L. c. 265, Section 13D.

The defendants appealed, and the appeals were tried before a judge with jury in the jury of twelve session of the Municipal Court of the City of Boston.

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Verdicts of guilty were returned against all three defendants as to the disorderly person complaints, and a fine of $100 thereon was imposed against each. Isaac Richards was also found guilty of drinking intoxicating liquor in a public place, and a fine of $20 was imposed. Ocie Elder was also found guilty of assault and battery on a police officer, and was sentenced to thirty days in a house of correction, but the sentence was suspended and a one-year probation was imposed. Execution of all sentences was stayed pending appeal.

The defendants are before this court on a bill of exceptions. G. L. c. 278, Section 31. The defendants argue that it was error for the judge to deny their motions to dismiss and for directed verdicts as to all complaints. As to the disorderly person complaints in particular, they argue that G. L. c. 272, Section 53, is unconstitutional because of vagueness and overbreadth. They also argue that it was error to deny their motions that a stenographer be appointed and that they be supplied a free transcript of the proceedings. We conclude that there was no error.

1. We turn first to the claim, as raised by the defendants' motions to dismiss the complaints, that the "disorderly persons" provision of G. L. c. 272, Section 53, is unconstitutionally vague. We recently upheld this statutory provision against a claim of unconstitutional vagueness in Commonwealth v. A Juvenile, 368 Mass. 580, 587 (1975). We reaffirm that holding now. There is no necessity to repeat here our extended reasoning as stated in that case. Id. at 595-599. Suffice it to say, we concluded that as reaching to conduct (other than expressive conduct) the "disorderly persons" provision is not vague. Id. at 587. We recognized that the statutory phrase would be unconstitutionally vague, except for this court's authoritative construction in Alegata v. Commonwealth, 353 Mass. 287, 304 (1967).

In the Alegata case we engrafted onto Section 53 the Model Penal Code definition of the offense of disorderly conduct (Model Penal Code Section 250.2 [Proposed Official Draft,

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1962]), and, with this additional definitional content, held that the statute charges an offense which is not void for vagueness. Section 250.2 of the Model Penal Code, after a preface which merely defines the requisite intent to commit a criminal act, specifies that a person is guilty of disorderly conduct who "(a) engages in fighting or threatening, or in violent or tumultuous behavior; or . . . (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." [Note 2]

2. We turn next to the defendants' assertions, as raised by their motions for directed verdicts, that assuming constitutionality of G. L. c. 272, Section 53, the evidence did not warrant their convictions as disorderly persons.

We summarize the evidence most favorable to the Commonwealth as introduced in the Commonwealth's case in chief prior to resting its case, at which time the defendants' motions for directed verdicts were denied.

During the afternoon commuter rush hour of March 4, 1974, about 4:50 P.M., Boston police officers Donald Locke and Robert Hurley went to the Copley Square Mall in response to a complaint from the custodian of a nearby commercial building. Congregated about the crowded mall were groups of people, some of whom were drinking alcoholic beverages. The officers placed one person who had been drinking under arrest. Officer Locke then went to two or three of the groups and requested that they stop drinking or be placed under arrest. Isaac Richards, who persisted in drinking on the mall, was informed by Officer Locke that he had been

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warned to stop drinking and leave the area, and that since he had not done so, he was now under arrest.

When the officer attempted to make the arrest, the defendant Isaac Richards kept pulling away from Officer Locke and jerking his arm away. As Richards continued to resist arrest, he called Officer Locke a "mother f-----" and told him he was like the "f------ pigs in Rhode Island." A crowd began to surround Officer Locke.

Halfway to the police cruiser Officer Hurley came to Officer Locke's assistance. When they got Isaac Richards to the sidewalk, James Richards, his brother, began punching Officers Locke and Hurley about the head, shoulders, and back. James Richards yelled at the officers as he struck them, "You mother f------ white pigs, let go of my brother, they're taking my brother, let him go, he didn't do nothing." As James continued to punch the officers and yell obscenities, the crowd which was gathering became hostile and abusive toward the police. About 200 persons had congregated. They bombarded Officers Locke and Hurley with bundles of newspapers, books, and other debris. During this time Isaac Richards kept falling down as the officers attempted to bring him to the police cruiser. On reaching the cruiser Isaac resisted being placed inside by placing his hands on the roof of the cruiser. Within a few minutes after Officers Locke and Hurley had reached the cruiser with Isaac, other police officers arrived on the scene, pursuant to an "officer in trouble" call. Officer Hurley then let go of Isaac and assisted other officers in subduing James Richards. James and Isaac were taken to a waiting police wagon. As the officers attempted to place Isaac in the wagon, he kicked Officer Locke in the arm, causing Locke to fall back against Officer Peter Dougherty who was assisting Locke with Isaac. At the time Isaac and James were being placed in the police wagon, Officer Cardinal was standing near the wagon when his attention was drawn to the defendant Ocie Elder. Elder said to Cardinal: "What are you arresting them for, why don't

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you arrest me, you don't have any b----, I'll kill you, I'll break you in two." Cardinal responded, "[I]f you don't behave yourself, you're going to be arrested also." Elder suddenly lurched out of the crowd and struck Cardinal on the mouth with his fist. The officer received soreness in his mouth and also had a partial plate cracked by the blow. Officer Robert Saitta, who grappled with Elder, was bitten in the chest by Elder.

Entirely aside from any constitutionally protected speech or expressive conduct, it is patently clear that there was evidence that each of the defendants was guilty of being disorderly within the meaning of Section 53, as we have construed it. All three defendants engaged in "fighting" and in "violent or tumultuous behavior." All of this conduct in the existing circumstances, which showed all three defendants resisting arrest in the midst of a crowd which was hostile and abusive to the police, could clearly be found to have been done with the requisite criminal intent.

There is no merit to the defendants' assertion that directed verdicts should be ordered because of the many inconsistencies in the testimony of witnesses introduced by the Commonwealth. The contention is that an inference should have been drawn of perjury, or police conspiracy. It is true that many inconsistencies appear in the record. Nevertheless, considering the privilege of the jury to use selectively their power to determine the credibility of witnesses, and considering also that there was ample evidence (if believed) to support the jury verdicts, the defendants' argument fails.

3. The defendants, by their motions to dismiss the complaints and their motions for directed verdicts, as well as memoranda of law filed with the trial judge, seasonably raised the issue that the disorderly person provision of Section 53 cannot constitutionally be the basis for criminal conviction for the use of protected speech and expressive conduct, even if that speech and conduct may be considered as offensive and abusive. We so held in

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Commonwealth v. A Juvenile, 368 Mass. at 587-595 (1975). It is true that there was evidence of offensive and abusive language addressed by the defendants to the police. However, no error has been shown here in the denial of the various motions.

We have concluded above there was evidence that all three defendants engaged in fighting and violent or tumultuous behavior, and that convictions under Section 53 based on such evidence are constitutionally valid. [Note 3] It has not been shown in the record before us that the jury were permitted to consider speech or expressive conduct as evidence of criminal conduct. The judge's charge to the jury is not included in the bill of exceptions. [Note 4] Neither did the defendants offer pertinent requests for jury instructions, [Note 5] or take any exceptions to the charge, so far as appears.

Essentially then, the defendants now ask this court to assume that the judge charged the jury incorrectly. This we decline to do. Since there was evidence that the

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defendants engaged in fighting and violent or tumultuous behavior, entirely apart from any speech of theirs, the judge could appropriately submit the Section 53 complaints to the jury with instructions, inter alia, that the speech of the defendants was not to be considered as evidence of guilt. For all that appears, the judge so instructed the jury. If we were to hold on this record that error under the First Amendment has been shown, it would amount to a conclusion that, merely because the violent conduct of the defendants was accompanied by speech, no conviction of the defendants as disorderly persons was permissible. Such a conclusion would be wrong, since we have construed Section 53 as constitutionally valid so long as it does not reach protected speech and expressive conduct.

In attempting to discern whether the speech of the defendants was considered by the jury as evidence of guilt, we see no significance in the fact that verdicts of not guilty were returned on the assault and battery complaints as to two of the defendants, Isaac Richards and James Richards. For example, the jury may well have decided to consider the fighting of these two defendants only as it related to the disorderly person complaints against these defendants. For all that appears, they may possibly have regarded that reasoning as mandatory under the judge's charge. In any event, we see no inference arising from a consideration of all the verdicts that any conviction was premised on speech. Nor is it significant that the third defendant, Ocie Elder, was found guilty on both a disorderly person complaint and an assault and battery complaint. There was evidence that he used force and violence against two of the officers, and the jury may have premised its separate results on the two separate episodes.

4. There was no error in the denial of the motion for a directed verdict by the defendant Elder as to the complaint which charged assault and battery against Officer Saitta. There was evidence that Elder bit Saitta in the chest. Nor was there error in the denial of the motion

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for a directed verdict addressed to the complaint for drinking in public against the defendant Isaac Richards, since the evidence warranted the jury verdict of guilty.

5. There was no error in the denial of the defendants' motions, filed at the beginning of the trial, for appointment of a stenographer and the supplying of a stenographic transcript to the defendants at public expense. See Commonwealth v. Roberts, 362 Mass. 357, 368-369 (1972); Commonwealth v. Britt, 362 Mass. 325, 331-332 (1972). But cf. Blazo v. Superior Court, 366 Mass. 141, 150-154 (1974). [Note 6] The defendants were permitted to record the trial on tape using equipment provided by defense counsel. See Rule 52 of the Rules of the Municipal Court of the City of Boston for Civil Actions (1952), as amended March, 1973 (now Rule 15 of the Rules of the Municipal Court of the City of Boston for Criminal Business, as amended, effective July 1, 1975). No error arises merely because subsequent events show that the recording, for whatever reason, apparently was defective in places.

Exceptions overruled.