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SJC-12081

                 COMMONWEALTH   vs.   RICHIE ACCIME.



      Suffolk.      November 9, 2016. - February 13, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.


Idle and Disorderly Person.     Self-Defense.   Practice, Criminal,
     Instructions to jury.



     Complaint received and sworn to in the Central Division of
the Boston Municipal Court Department on July 19, 2011.

    The case was tried before Annette Forde, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Jeffrey A. Garland, Committee for Public Counsel Services,
for the defendant.
     Donna Jalbert Patalano, Assistant District Attorney (Neil
J. Flynn, Jr., Assistant District Attorney, also present) for
the Commonwealth.
     Bettina Toner, Robert D. Fleischner, Jennifer Honig, Chetan
Tiwari, & Phillip Kassel, for Center for Public Representation &
another, amici curiae, submitted a brief.


    BOTSFORD, J.    The defendant, Richie Accime, appeals from

his disorderly conduct conviction under G. L. c. 272, § 53,
                                                                        2


claiming there was insufficient evidence to support it.       The

charge was brought against him in relation to his conduct as a

patient in the psychiatric area of the emergency department at a

hospital in Boston.     Accime argues that in the circumstances of

this case, the Commonwealth failed to prove he consciously

disregarded a "substantial and unjustifiable risk of public

inconvenience, annoyance, or alarm."      Emphasizing the setting-

specific inquiry required by our case law, we agree with the

defendant and reverse the judgment of conviction.1

     1.   Background.    a.   Facts.   Viewing the facts in the light

most favorable to the Commonwealth, the jury could have found

the following.   In the afternoon of June 5, 2011, the defendant

was brought by ambulance and against his will to the emergency

department of a hospital.     There he was involuntarily detained

in a small room in the psychiatric area of the hospital's

emergency department.     Although this detention was purportedly

pursuant to G. L. c. 123, § 12 (a), which allows the temporary

restraint and hospitalization of persons posing a serious risk

of harm by reason of mental illness, according to the defendant,

who testified at trial, he was shown no evidence of compliance

with the procedures required by § 12 (a), nor was any such

evidence produced at trial.


     1
       We acknowledge the amicus brief of The Center for Public
Representation and The Mental Health Legal Advisors Committee.
                                                                     3


    When told he would likely be held in the hospital for two

or three days, the defendant began to shout.     Medical staff

requested assistance from hospital security officers and, on

their arrival, instructed the officers not to allow the

defendant to leave.   At approximately 8 P.M., a security officer

called for additional assistance; at least four other security

responded.   At least one officer was armed with a baton and

handcuffs in addition to the pepper spray that was carried by at

least three officers.

    The officers attempted to persuade the defendant to take

medication that he told them he did not want.     Having heard the

defendant repeatedly say, "I don't want to take the medication.

I want to get out of here," the officers told him that if he

refused to take the medication, he would be restrained, and

later, that if he did not comply with orders he would be pepper

sprayed.

    In response to the officers' orders, the defendant stated,

"I'm not taking any medications.   You can't hold me here against

my will"; "I don't want to fuck anybody up, but I guarantee I'm

leaving one way or the other"; "if anybody puts their hands on

me, I'm going to fuck them up"; and "if anybody pepper sprays me

I'm going to beat the fuck out of them."   Furthermore, when the

officers first entered the room, the defendant had said, "The

first person in, I'm going to break their arm.    And then the
                                                                   4


next person in, I'm going to break theirs, and then the next,

and then the next."   Other patients were "looking on"; as a

precautionary measure, officers directed anyone in the hallway

to an alternate route "just in case something happened if [the

confrontation] spilled out" of the room.2   The officers asked the

defendant to calm down, and repeated their request that he

accept medication.

     The defendant took his shirt off,3 and began pacing with

clenched fists, hitting the open palm of one hand with the

clenched fist of the other.   He repeated his desire to leave,

insisted no one was going to stop him, and refused to sit on a

stretcher to be restrained.   He then adopted a "fighting"

stance.4

     After officers threatened the use of pepper spray and

approached the defendant, the defendant "put his hands out like


     2
       There was no evidence introduced to suggest that any
aspect of the disturbance the defendant was claimed to have
caused in the room ever extended beyond the confines of the
room.
     3
       The defendant was described at trial as having a muscular
build, weighing about 270 pounds, and standing about six feet,
four inches in height.
     4
       There was conflicting testimony as to whether this stance
preceded or followed a supervising officer's statement to the
defendant that he would be pepper sprayed if he refused to
comply: of three testifying officers, one testified that the
stance came before the threat of pepper spray, one testified
that the threat came first, and the third offered conflicting
testimony on this point.
                                                                   5


he wanted to fight."    At least three, and as many as six,

officers then directed pepper spray at the defendant's head and

face.5    The defendant retreated into a corner of the room and

subsequently agreed to sit on the stretcher, where he was

handcuffed before the spray was rinsed off him.

     b.    Procedural history.   On July 19, 2011, a criminal

complaint issued from the Boston Municipal Court Department

charging the defendant with threatening to commit a crime in

violation of G. L. c. 275, § 2; disorderly conduct in violation

of G. L. c. 272, § 53; and assault in violation of G. L. c. 265,

§ 13A.    The defendant was tried before a jury in June, 2014.    He

moved for a required finding of not guilty at the close of the

Commonwealth's case and again at the close of his case; the

trial judge denied each motion.    The judge also refused the

defendant's requested instructions as to his right to use self-

     5
       Two separate audio recordings of officers, describing the
incident shortly after it had occurred, were admitted as trial
exhibits and played several times before the jury. In one
recording, one officer said that "six of us sprayed the guy,"
and described the defendant as "built like a frigging refridge
. . . too big, too jacked . . . like six four and 280 pounds of
pure, just, ripped nastiness." Stating in the recording that
"we" "doused" and "covered" the defendant with pepper spray,
this officer said that he had emptied his spray canister and
that he and a third officer would need new ones. This force
notwithstanding, the other officer who was recorded conceded
that officers "sprayed the big dude because he didn't want to
comply. But he didn't really fight back that much." When asked
whether the defendant would be locked up, the unnamed officer
responded, "No. He didn't fight. He didn't really fight
anyone. He complied after, you know. Everybody, like, five
people sprayed him."
                                                                    6


defense against excessive force, unlawful detention, and

forcible medication.   The jury acquitted the defendant of

assault, but convicted him of disorderly conduct, and failed to

agree on a verdict on the charge of threatening to commit a

crime.   Consistent with § 53, the judge imposed a fine on the

disorderly conduct conviction.     The defendant filed a timely

notice of appeal, and this court allowed his application for

direct appellate review.

    2.   Discussion.   a.   Sufficiency of the evidence.    The

defendant argues that there was insufficient evidence to support

his conviction of disorderly conduct under G. L. c. 272, § 53.

Specifically, he argues the Commonwealth failed to prove either

(1) his recklessness in creating a risk of "public

inconvenience, annoyance, or alarm," or (2) the "public"

character of any such risk.   In reviewing this claim, we

consider the evidence introduced at trial in the light most

favorable to the Commonwealth, and determine whether a rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.    Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979).

    General Laws c. 272, § 53, provides that being a

"[d]isorderly person[] and disturber[] of the peace" is a
                                                                    7


criminal offense punishable by a fine for the first offense.6     In

order to interpret the term and ensure its constitutionality,

this court has "engrafted the Model Penal Code definition of

'disorderly' onto the separate § 53 offense" of being a

disorderly person.    Commonwealth v. Chou, 433 Mass. 229, 231-232

(2001).    As so construed, the disorderly conduct provision in

§ 53 requires proof that a person, "with purpose to cause public

inconvenience, annoyance or alarm, or recklessly creating a risk

thereof," engage in "fighting or threatening, or in violent or

tumultuous behavior" or create "a hazardous or physically

offensive condition by any act which serves no legitimate

purpose of the actor."    Commonwealth v. Sholley, 432 Mass. 721,

727 n.7 (2000), cert. denied, 532 U.S. 980 (2001), quoting Model

Penal Code § 250.2 (Official Draft and Revised Comments, 1980).7

The comments to the Model Penal Code emphasize that "[n]othing


     6
         General Laws c. 272, § 53, provides, in relevant part:

          "(b) Disorderly persons and disturbers of the peace,
     for the first offense, shall be punished by a fine of not
     more than $150. On a second or subsequent offense, such
     person shall be punished by imprisonment in a jail or house
     of correction for not more than [six] months, or by a fine
     of not more than $200, or by both such fine and
     imprisonment." (Emphasis added.)
     7
       In Commonwealth v. A Juvenile, 368 Mass. 580, 585-586,
587, 592 (1975), this court, construing the disorderly person
provision, limited the adopted portion of the Model Penal Code
definition to § 250.2(1)(a) and (c), because § 250.2(1)(b), in
the court's view, was unconstitutionally overbroad, reaching
protected speech.
                                                                    8


less than conscious disregard of a substantial and unjustifiable

risk of public nuisance will suffice for liability."     Model

Penal Code § 250.2 comment 2, at 328–329 (1980).   See

Commonwealth v. Feigenbaum, 404 Mass. 471, 475 (1989), quoting

Model Penal Code § 250.2(2)(c) (Official Draft and Revised

Comments, 1985) (disorderly conduct conviction requires proof

that defendant "consciously disregard[ed] a substantial and

unjustifiable risk that the material element exists or will

result from his conduct").8   "Conviction cannot be had merely on

proof that an actor should have foreseen the risk of public

annoyance or alarm."   Model Penal Code § 250.2 comment 2, at 329

(1980).

     Against this backdrop, the defendant argues there was

insufficient evidence that he recklessly created a risk of

public inconvenience, annoyance, or alarm.   We agree.    The

Commonwealth argues the evidence shows that the defendant's

"violent and tumultuous behavior" was motivated by his desire to

leave the room despite the officers' contrary warnings and

regardless of the consequences, causing public inconvenience,


     8
       See Instruction 7.160, Supplemental Instruction 3, of the
Criminal Model Jury Instructions for Use in the District Court
(2009) ("A person acts recklessly when he consciously ignores,
or is indifferent to, the probable outcome of his actions. The
defendant was reckless if he [she] knew, or must have known,
that such actions would create a substantial and unjustifiable
risk of public inconvenience, annoyance or alarm, but he [she]
chose, nevertheless, to run the risk and go ahead").
                                                                      9


annoyance, and alarm and requiring that traffic be rerouted

around his hospital room.   The totality of this causal

relationship is doubtful, given that the rerouting of hospital

traffic was initiated by the security officers as a prophylactic

step and there was no evidence that it was actually needed.     But

even assuming the validity of the Commonwealth's

characterization of the scene, the fact that the defendant's

behavior caused officers to reroute and inconvenience people

does not mean that the defendant was aware that his behavior had

this effect, and acted in conscious disregard of its occurrence.

No evidence was presented that the defendant ever went out of

the room he was in; that he knew of the hospital pedestrian

rerouting officers decided to institute; or that he saw any

patients "looking on" through the window into the room.    Quoting

Justice Holmes, the Commonwealth claims that recklessness "in a

moral sense" signifies "a certain state of consciousness with

reference to the consequences of one's acts," Commonwealth v.

Pierce, 138 Mass. 165, 175 (1884), and that a failure to predict

the consequences is immaterial if, "under the circumstances

known to [the defendant], the . . . jury . . . thought them

obvious."   Id. at 178.   This elegantly phrased observation seems

contrary to the Model Penal Code's statement of the standard as

set out in comment 2 to § 250.2, but even if Justice Holmes's

statement did represent an appropriate articulation of the
                                                                    10


standard, by its terms, it depends on "the circumstances known

to [the defendant]" (emphasis added).    Id.   It bears emphasis

that at the time of this incident, according to the

Commonwealth, the defendant had been brought to and was detained

in the hospital's emergency department because he was thought to

be dangerous to himself or to others by reason of mental

illness.   See G. L. c. 123, § 12.   We do not decide that a

person detained in such circumstances can never satisfy the

intent element of the crime of disorderly conduct, but in the

circumstances presented here, without any evidence showing or

even suggesting that the defendant was at all aware that his

conduct had any impact on anyone in the hospital outside his

room, the Commonwealth has failed to prove that the defendant

acted with the requisite conscious disregard of an

"unjustifiable risk" of public annoyance or alarm created by his

conduct.

    Moreover, quite apart from the element of intent, in the

context in which they took place, the defendant's actions do not

amount to the sort of "public inconvenience, annoyance, or

alarm" that G. L. c. 272, § 53, targets.    See Instructing 7.160

of the Criminal Model Jury Instructions for Use in the District

Court (2009).   Disorderly conduct embraces those activities

which "intentionally tend to disturb the public tranquility, or

alarm or provoke others" (citation omitted).     Commonwealth v. A
                                                                   11


Juvenile, 368 Mass. 580, 595-596 (1975).     See Commonwealth v.

Mulvey, 57 Mass. App. Ct. 579, 584 (2003) (characterizing

"tendency of the actor's conduct to provoke violence in others"

as foundational to theory behind criminalizing disorderly

conduct).    The comments to the Model Penal Code note that "[o]ne

of the chief uses of a disorderly conduct statute is to prohibit

public brawling."     Model Penal Code § 250.2 comment 3, at 330

(1980).     Disorderly conduct includes a subset of "tumultuous

behavior," that is, conduct "involving riotous commotion and

excessively unreasonable noise so as to constitute a public

nuisance" (citation omitted). A Juvenile, supra at 597.     See

Sholley, 432 Mass. at 730, and cases cited.

     For purposes of G. L. c. 272, § 53, "public" is defined as

"affecting or likely to affect persons in a place to which the

public or a substantial group has access."     Alegata v.

Commonwealth, 353 Mass. 287, 304 (1967), quoting Model Penal

Code § 250.2 (Proposed Official Draft, 1962).9    We have


     9
       See, e.g., Commonwealth v. Richards, 369 Mass. 443, 446-
448 (1976) (defendants in shopping mall refusing to cease public
drinking, shouting obscenities, resisting arrest, and attracting
crowd of about 200 people hostile and abusive to police
warranted disorderly conduct convictions); Commonwealth v.
Sinai, 47 Mass. App. Ct. 544, 548 (1999) (disorderly conduct
conviction upheld where defendant in parking lot of public town
beach was screaming and yelling at parking attendant and then
two police officers, pounding on steering wheel of his
automobile with both hands, attempting to strike two police
officers and forcibly resisting arrest by three police officers,
which attracted crowd of twenty onlookers and caused traffic to
                                                                  12


recognized, however, that conduct disruptive in one setting may

be tolerable in another.   See Sholley, 432 Mass. at 730 n.11

("conduct proscribed [under § 53] varies with the setting and

the surrounding circumstances").   See also Commonwealth v.

Orlando, 371 Mass. 732, 735 (1977), and cases cited (hurling

objects in deserted location would not disturb peace while

hurling objects in populated area would be violation).

    In the Sholley case, we concluded that the threshold for

acceptable disruption was lower in a court house than it would

be elsewhere, reasoning that

    "the fact that Sholley's threats, yelling and screaming
    occurred in a court house, while several court rooms were
    in session, makes the conduct far more damaging to public
    order than would the same noise level -- or even words
    suggestive of threats -- at, for example, a sporting event.
    At a court house, the level and duration of 'commotion'
    that can be tolerated by the public is relatively low, and
    the point at which noise becomes 'excessively unreasonable'
    is also relatively low."

Sholley, 432 Mass. at 730–731.   In concluding that the

defendant's outburst "went far beyond the level of noise and



be rerouted); Commonwealth v. Mulero, 38 Mass. App. Ct. 963,
964-965 (1995) (during roadside stop, defendant's actions of
removing his hands from police cruiser, flailing them in
agitated and belligerent manner while berating police officer
with loud profanities and shoving his hands into pockets of his
shorts while crowd of thirty people gathered was sufficient to
constitute probable cause to arrest defendant on charge of
disorderly conduct); Commonwealth v. Carson, 10 Mass. App. Ct.
920, 921-922 (1980) (intoxicated defendant who became
belligerent when approached by police outside college dormitory
and resisted arrest while crowd of about fifty people gathered
was guilty of disorderly conduct).
                                                                    13


commotion ordinarily encountered in court house hallways," the

court considered relevant both the spectators who gathered10 and

"the number of persons who abandoned their ordinary duties to

respond to that noise and commotion."      Id. at 729.   These

included a court officer leaving a sitting judge to follow the

defendant through the building; an assistant district attorney

interrupting a meeting to check on the safety of the attorneys

she supervised; and three police officers abandoning their posts

to investigate the disturbance.     Id.   Together, these actions

"gave rise to a sense of emergency on the part of those who

heard it, an emergency that went way beyond the ordinary 'hurly-

burly' to which they were accustomed."      Id.

     The same cannot be said of the defendant's conduct in this

case.     His behavior in the emergency department did not attract

the crowd of onlookers that typifies public disturbance under

our law.    See note 10, supra.   All the evidence shows is that

the behavior was witnessed and experienced by the hospital's

treating staff attending the defendant and the security officers

called in by the staff.    The evidence would permit a finding

that unquantified "other" patients may have observed the

defendant's loud and aggressive behavior in his room; "other"


     10
       These included people "peering out of doors on the second
floor to see what was happening," and people who "came out of
the first session and the probation department on the first
floor." Id. at 730.
                                                                  14


patients looking in on a patient arguably out of control in a

small hospital room does not qualify as the kind of public

disturbance that § 53 is intended to address.

     Indeed, far from going "way beyond" a hospital's day-to-day

"hurly-burly," a patient's resistance to detention and

medication would seem to be the kind of disruption a psychiatric

area in the hospital's emergency department is designed to

absorb.11   The responding officers, moreover, were not leaving

their posts, but carrying out an assignment that fit squarely

within their job to provide security to the hospital community.12

Where the inquiry is setting-specific, Sholley, 432 Mass. at 730

n.11, criminal charges of disorderly conduct in the context of

mental health treatment in the emergency department of a large

urban hospital, although not per se unavailable, should be rare.

To decide otherwise risks criminalizing mental illness in the

very treatment centers where help must be available.

     We do not minimize the challenges faced by staff in the

psychiatric ward of a large hospital like the one here,


     11
       Cf. Zun, Care of Psychiatric Patients: The Challenge to
Emergency Physicians, 17 W.J. Emerg. Med. 173, 173 (2016).
     12
       One officer testified that his duties as a special police
officer at the hospital ranged from "radio calls for service to
patrol," and he expressed familiarity with the psychiatric area;
another officer identified as his primary responsibility "to
make sure that we proactively protect and serve the community at
[the hospital]," including patrol; and a third officer was
"posted in the emergency department at the hospital."
                                                                   15


including the hospital's security officers.   This would be a

very different case if the defendant had actually struck a

member of the hospital staff or had intentionally or recklessly

caused a substantial disruption to other patients or hospital

operations.   Here, however, the jury found the defendant not

guilty of assault and reached no verdict on the charge of

threatening to commit a crime.   The defendant's belligerent

actions, given their context and location, do not rise to the

level of disorderly conduct.

     In sum, considering all the evidence in this case in the

light most favorable to the Commonwealth, we conclude that it

was not sufficient to permit a reasonable jury to find beyond a

reasonable doubt that the defendant consciously disregarded a

"substantial and unjustifiable risk of public inconvenience,

annoyance, or alarm."   The defendant's conviction of disorderly

conduct must be reversed.13

     b.   Additional considerations.   The defendant argues in

this case that his detention in the hospital and the forced

administration of medication without his consent were unlawful,

and that as a consequence, he was entitled to a jury instruction

on self-defense in relation to all three of the criminal charges


     13
       The defendant may be entitled to a refund of any fine he
may have paid. Cf. Commonwealth v. Martin, 476 Mass. 72, 77-78
(2016) (because distinguishable from punitive fines, probation
fees for voidable convictions need not be returned).
                                                                   16


against him.   We need not reach this issue in light of the fact

that the defendant was found guilty only of disorderly conduct,

and we have concluded that there was insufficient evidence to

support that conviction.

    The defendant is correct, however, that as a general

matter, the involuntary hospitalization and forcible medication

of an individual on account of mental illness is not permitted

unless there is compliance with the specific statutory

requirements of G. L. c. 123, §§ 12 and 21.   It has long been

the law that medical treatment of a competent patient without

his consent is a battery, and is permitted only for incompetent

patients where procedural protections are followed.   See, e.g.,

Matter of Spring, 380 Mass. 629, 638 (1980), and cases cited.

See also Rogers v. Commissioner of the Dep't of Mental Health,

390 Mass. 489, 499-500 (1983).

    At trial, the judge instructed the jury that "if there is a

need to give medications, a hospital follows certain procedures,

which we're not getting into here because it has no relevance to

this case," and that the "procedures being followed . . . [are]

not a part of this case."   But the defendant makes the point

that the Commonwealth presented no evidence at trial of

compliance with either the requirements of G. L. c. 123, § 12,

as to the defendant's hospitalization or with those of G. L.

c. 123, § 21, as to the defendant's forced medication.    Because
                                                                  17


adherence to these statutory protections generally is a

condition precedent to involuntary hospitalization and

medication, we disagree with the judge that evidence on this

point has no relevance.   To the contrary, failure to adhere to

the protections of G. L. c. 123, § 12 or 21, may well be

relevant to consideration of the defendant's requisite intent --

i.e., that a person act intentionally or recklessly to cause or

create public inconvenience, annoyance, or alarm.14

     Conclusion.   The defendant's conviction of disorderly

conduct is reversed, the judgment is vacated, and the case

remanded to the Boston Municipal Court for entry of a judgment

of dismissal.

                                    So ordered.




     14
       As previously stated, we do not reach the defendant's
arguments about a self-defense instruction in this case.
However, in connection with criminal charges involving the use
of force, evidence of failure to comply with G. L. c. 123, § 12
or 21, may be a relevant consideration in weighing whether a
defendant may be entitled to an instruction on self-defense in
some circumstances. Cf. Instruction 9.260, Supplemental
Instruction 12, of the Criminal Model Jury Instructions for Use
in the District Court (2009) (police privilege; resisting
arrest).
