Opening
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . iii
QUESTIONS PRESENTED . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . 1
A. THE COMMONWEALTH’S CASE . . . . . . 1
B. MR. MANZELLI’S CASE . . . . . . . 8
ARGUMENT . . . . . . . . . . . . . . 8
IT WAS REVERSIBLE ERROR AND VIOLATIVE
OF THE DUE PROCESS AND FAIR TRIAL PROVISIONS
OF THE UNITED STATES CONSTITUTION AND THE MASSACHUSETTS DECLARATION OF RIGHTS FOR
THE JUDGE TO DENY THE DEFENDANT’S MOTION
FOR A REQUIRED FINDING OF NOT GUILTY WHERE
THE EVIDENCE WAS INSUFFICIENT FOR A RATIONAL
TRIER OF FACT TO CONCLUDE, BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT WAS GUILTY OF WIRETAPPING . . . . . . . 8
THERE WAS NO EVIDENCE OF A RECORDING,
SECRET OR OTHERWISE, AS REQUIRED UNDER
M.G.L. C. 272, SEC. 99 . . . . . 9
1. NO EVIDENCE WAS INTRODUCED OF A RECORDING AT ALL . . . . . 9
2. NO EVIDENCE WAS INTRODUCED OF A
SECRET RECORDING . . . . 12
B. THERE WAS NO EVIDENCE OF THE
INTERCEPTION OF AN ORAL
COMMUNICATION . . . . . . . . 16
IT WAS REVERSIBLE ERROR AND VIOLATIVE
OF THE DUE PROCESS AND FAIR TRIAL PROVISIONS
OF THE UNITED STATES CONSTITUTION AND THE MASSACHUSETTS DECLARATION OF RIGHTS FOR
THE JUDGE TO DENY THE DEFENDANT’S MOTION
FOR A REQUIRED FINDING OF NOT GUILTY WHERE
THE EVIDENCE WAS INSUFFICIENT FOR A RATIONAL TRIER OF FACT TO CONCLUDE, BEYOND
A REASONABLE DOUBT, THAT THE DEFENDANT
WAS GUILTY OF DISORDERLY CONDUCT. . . 19
III. THE TRIAL JUDGE’S INSTRUCTIONS, WHICH ERRONEOUSLY CHARGED THE JURY THAT THEY
MAY NOT CONVICT THE DEFENDANT ON THE
DISORDERLY CONDUCT CHARGE IF THEY FOUND
THAT THE DEFENDANT’S ACTIONS WERE BASED
ON LEGITIMATE NEWS GATHERING ACTIVITIES,
CREATED A SUBSTANTIAL LIKELIHOOD
OF A MISCARRIAGE OF JUSTICE . . . . 22
CONCLUSION . . . . . . . . . . . . . 26
ADDENDUM . . . . . . . . . . . . . ADD-1
RECORD APPENDIX . . . . . . . . . . . . R-0
TABLE OF AUTHORITIES
CASES
Commonwealth v. A Juvenile, 368 Mass. 580 (1975). 21
Commonwealth v. Acevedo, 427 Mass. 714 (1998) . . 25
Allegata v. Commonwealth, 353 Mass. 287 (1967). . 20
Bonacorso Const. Co. v. Master Builders, Inc., 1991 WL 72796 (D. Mass.) . . . . . . . . . . . 15
Commonwealth v. Chou, 433 Mass. 229 (2001) . . . 20
Commonwealth v. Feigenbaum, 404 Mass. 471
(1989) . . . . . . . . . . . . 19, 23, 24
Commonwealth v. Freeman, 352 Mass. 556 (1967) . . 24
Commonwealth v. Gordon, 422 Mass. 816 (1996) . . 13
Commonwealth v. Hyde, 434 Mass. 594 (2001) . . 11, 12
Commonwealth v. Jackson, 370 Mass. 502 (1976) . . 13
Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835
(1972) . . . . . . . . . . . . . . . 15
Lawler v. General Elec. Co., 1 Mass. App. Ct. 220
(1973) . . . . . . . . . . . . . . . 15
Moore v. Marty Gilman, Inc., 965 F. Supp. 203 (D. Mass. 1997) . . . . . . . . . . . . . 15
Reidy v. Crompton & Knowles Loom Works, 318 Mass. 135 (1945) . . . . . . . . . . . . . . . 15
Commonwealth v. Rivera, 445 Mass. 119 (2005) . . 13
Commonwealth v. Sholley, 48 Mass. App. Ct. 496
(2000) . . . . . . . . . . . . . . . 21
State v. Stampone, 775 A.2d 193 (N.J. Super. A.D.
2001) . . . . . . . . . . . . . . . 22
Commonwealth v. Wright, 61 Mass. App. Ct. 790
(2004) . . . . . . . . . . . . 10, 11, 16
Commonwealth v. Zettel, 46 Mass. App. Ct. 471
(1999) . . . . . . . . . . . . . . . 21
STATUTES
M.G.L. c. 272, sec. 53 . . . . . . . . . . 19
M.G.L. c. 272, sec. 99 . . . . . . . . . 9, 16
M.G.L. c. 272, sec. 99(B)(2) . . . . . . . 9, 16
M.G.L. c. 272, sec. 99(B)(6) . . . . . . . 9, 16
M.G.L. c. 272, sec. 99(C)(1) . . . . . . . . 9
QUESTIONS PRESENTED
1. Whether it was reversible error and violative of the due process and fair trial provisions of the United States Constitution and the Massachusetts Declaration of Rights for the judge to deny the Defendant’s motion for a required finding of not guilty where the evidence was insufficient for a rational trier of fact to conclude, beyond a reasonable doubt, that the Defendant was guilty of illegal wiretapping, when there was no evidence of a recording, secret or otherwise, and there was no evidence of the interception of an oral communication?
2. Whether it was reversible error and violative of the due process and fair trial provisions of the United States Constitution and the Massachusetts Declaration of Rights for the judge to deny the Defendant’s motion for a required finding of not guilty where the evidence was insufficient for a rational trier of fact to conclude, beyond a reasonable doubt, that the Defendant was guilty of disorderly conduct, when the Defendant’s actions served a legitimate interest of attempting to protect his personalty?
3. Whether the judge’s jury charge created a substantial likelihood of a miscarriage of justice when she erroneously charged the jury that they may not convict the Defendant on the disorderly conduct charge if they found that the Defendant’s actions were based on legitimate news gathering activities, and whether such a charge erroneously shifted the burden of proof? |
Brief
STATEMENT OF THE CASE
On or about September 30, 2002, Jeffrey D. Manzelli (ÒMr. ManzelliÓ) was arrested and charged in the Boston Municipal Court with unlawful wiretapping and disorderly conduct. (R. 13). Following a six-person jury trial on May 22, 2003 and May 23, 2003 (Forde, J., presiding), Mr. Manzelli was found guilty on both counts. (T. 232-33, R. 33-34). The court sentenced Mr. Manzelli to concurrent terms of two years probation and ordered him to perform 100 hours of community service. (T. 237-38).
A Notice of Appeal was filed on or about May 30, 2003 (R. 35), and the case was entered in this Court on July 22, 2005.
STATEMENT OF FACTS
A. The CommonwealthÕs Case.
1. Brian HarerÕs Testimony.
MBTA Police Officer Brian Harer (ÒOfficer HarerÓ) was uniformed and on-duty at the Park Street Station at approximately 3:00 p.m. on September 28, 2002. (T. 55). Officer Harer and MBTA Police Officer Victoria Riel (ÒOfficer RielÓ) were monitoring the doorways and entrance ways to the MBTA station since there were large protests occurring on the Boston Common. (T. 56).
At some point, Mr. Manzelli came within 5 or 6 feet of Officer Harer and Officer Riel, and he started taking their photographs. (T. 57). Officer Harer asked Mr. Manzelli to stop taking photographs, to which Mr. Manzelli asked why and continued to take photographs. (T. 58). Officer Harer told Mr. Manzelli that Mr. Manzelli could not use any of the photographs that he had taken, even though Officer Harer admitted that Mr. Manzelli was not doing anything illegal by taking the photographs. (T. 73-74, 77). Thereafter, Mr. Manzelli left. (T. 59).
MBTA Inspector Charles Kenneally (ÒInspector KenneallyÓ) came out of the MBTA station and began talking to Officer Harer and Officer Riel. (T. 59). Mr. Manzelli came back to talk to Inspector Kenneally, Officer Harer and Officer Riel. (T. 59). Mr. Manzelli asked Inspector Kenneally whether it was true that ÒOfficer badge number 46 of the MBTA Police Department said that I canÕt take his picture and use it.Ó (T. 60).
Officer Harer then testified as follows:
And then when he continued to ask the questions of the inspector, the inspector turned to me and asked me if it was true what he said, no[t] knowing, and then as I looked down at Mr. ManzelliÕs [sic], in his hand, right by his jacket, sticking out of his jacket was a microphone. . . . He was holding it inside his jacket. . . . He had an over jacket on and in the zipper seam of his jacket he had it placed in his jacket and he was basically holding it right there at the open mouth. . . .
(T. 60-61) (emphasis added).
Upon seeing the microphone, Officer Harer asked Mr. Manzelli if Mr. Manzelli was recording him without permission. (T. 62). According to Officer Harer, at that point Mr. Manzelli took the microphone and a fanny pack bag that Òhe was carrying a tape recorder in with tape cassettes,Ó removed it from his waist, and threw it towards a crowd of protestors. (T. 62). According to Officer Harer, Mr. Manzelli began yelling for the crowd to take the tapes. (T. 62).
Officer Riel went to retrieve the fanny pack, at which point the group of protestors swarmed around her and one of the protestors struck her. (T. 63). Officer Harer went to assist, and together he and Officer Riel retrieved an empty backpack bag, a microphone and audiocassette tapes. (T. 64-65). He also testified that he and Officer Riel recovered a long thin wire, photography equipment, cameras, photographic light, and developed and undeveloped rolls of film. (T. 148-49). The microphone was a small, thin tube microphone, Òprobably about a couple inches long with a long wire that ran down into the bag.Ó (T. 149). Officer Harer testified that he never listened to the audiocassette tapes. (T. 153).
Thereafter, Officer Harer went to apprehend Mr. Manzelli, who at that point was in the Park Street Station. (T. 65-66). As Officer Harer was about to apprehend him, Mr. Manzelli allegedly threw an audiocassette towards the top of the Park Street Station stairs. (T. 65-66). Officer Harer walked Mr. Manzelli up the stairs and out of the Park Street Station, at which point Mr. Manzelli purportedly threw a camera towards the crowd. (T. 68-69).
2. Victoria RielÕs Testimony.
Officer Riel testified that she too advised Mr. Manzelli not to take photographs of her. (T. 81). She stated that after advising him of that, Mr. Manzelli walked away. (T. 81). Thereafter, Officer Riel heard Officer Harer and Inspector Kenneally ask Mr. Manzelli, ÒAre you taping us,Ó at which point Officer Riel turned and saw Mr. Manzelli throw Òthis bag or whateverÓ into the air. (T. 81-82).
Officer Riel went to retrieve the bag, when she was elbowed in the eye. (T. 83). Officer Riel Òfocused her attentionÓ on the woman who elbowed her, but when that woman held a child in front of her, Officer Riel,
decided due to the fact that I knew that it would be, you know, harmful for the child to see me arresting her mother, you know, I decided it just wasnÕt worth it, you know?
(T. 83-84). Thereafter, Officer Riel went into the Park Street Station, saw a woman who appeared hurt, was told that she was okay, and then went to help Officer Harer bring Mr. Manzelli upstairs by clearing a path through the protestors. (T. 85).
While Mr. Manzelli was being placed into the cruiser, Officer Riel saw camera pieces everywhere, and she picked them up and gave them to Officer Harer. (T. 86). She also recovered Òa wire of some sort.Ó (T. 87). When asked if she remembered ever recovering an audiocassette, Officer Riel stated, ÒNo. I donÕt.Ó (T. 87). As far as whether she retrieved a tape recorder, Officer Riel stated, ÒNot to my knowledge.Ó (T. 96).
3. Inspector KenneallyÕs Testimony.
Inspector Kenneally testified that he too saw a microphone in Mr. ManzelliÕs possession. (T. 111). Specifically, Inspector Kenneally stated that,
I looked down, and he had one of those army field jackets and he had a, well it was something like this but it was one of those spongy things. And it was sticking out right there. And I looked down from his face and I asked him pointedly, are you recording me? . . . . What I saw was that little thing sticking out of his out of his [sic] field jacket. . . . [It was] about the size of a golf ball.
(T. 111-12) (emphasis added). When asked whether he saw Mr. Manzelli holding a microphone in his left hand angled up, Inspector Kenneally stated that he did not see Mr. ManzelliÕs hands. (T. 120).
Inspector Kenneally also testified that he saw a tape recorder on the ground, purportedly tossed by Mr. Manzelli. (T. 124-25). However, he could not say whether Officer Riel recovered the tape recorder or just an audiocassette tape. (T. 126).
4. No Physical Evidence.
As discussed above, Officer Harer stated that he and Officer Riel retrieved an empty backpack bag, a microphone, audiocassette tapes that were never listened to, a Òlong thin wire,Ó photography equipment, cameras, photographic light, and developed and undeveloped rolls of film. (T. 64-65, 148-49). Officer Riel stated that she retrieved camera pieces and Òa wire of some sort.Ó (T. 86-87). Notably, neither testified to retrieving a recording device.
Further, none of what the officers purportedly retrieved from Mr. Manzelli or the scene was introduced into evidence, nor were any audiocassette tapes that were purportedly recovered played for the jury.
B. Mr. ManzelliÕs Case.
1. Steven GillisÕ Testimony.
Steven Gillis (ÒMr. GillisÓ) is an employee of Laidlaw Bus Company and President of the School Bus Drivers Union. (T. 158). He was at the Park Street Station on September 28, 2002 participating in an anti-war demonstration. (T. 159). He saw Mr. Manzelli at the demonstration taking pictures and conducting interviews with a tape recorder. (T. 159). Mr. Gillis had seen Mr. Manzelli prior to that day, and Mr. Gillis recognized him as a reporter. (T. 159-60).
Mr. Gillis never saw Mr. Manzelli throw anything. (T. 162-63). Nor did Mr. Gillis remember Mr. Manzelli yell anything to the crowd other than, ÒTheyÕre arresting me.Ó (T. 163).
ARGUMENT
I. IT WAS REVERSIBLE ERROR AND VIOLATIVE OF THE DUE PROCESS AND FAIR TRIAL PROVISIONS OF THE UNITED STATES CONSTITUTION AND THE MASSACHUSETTS DECLARATION OF RIGHTS FOR THE JUDGE TO DENY THE DEFENDANTÕS MOTION FOR A REQUIRED FINDING OF NOT GUILTY WHERE THE EVIDENCE WAS INSUFFICIENT FOR A RATIONAL TRIER OF FACT TO CONCLUDE, BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT WAS GUILTY OF AN ILLEGAL WIRETAP.
At the close of the CommonwealthÕs case, trial counsel moved for a required finding of not guilty. (T. 155-58; R. 15). The motion was denied. (T. 155-58; R. 15). For the reasons discussed below, the motion should have been allowed.
THERE WAS NO EVIDENCE OF A RECORDING,
SECRET OR OTHERWISE, AS REQUIRED UNDER
M.G.L. C. 272, SEC.99.
Massachusetts General Laws c. 272, sec. 99 states, in pertinent part,
[A]ny person who willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined . . . or imprisoned. . . .
M.G.L. c. 272, sec. 99(C)(1). ÒInterceptionÓ means
to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication. . . .
M.G.L. c. 272, sec. 99(B)(6). ÒOral communicationÓ means
Speech, except such speech as is transmitted over the public air waves by radio or other similar device.
M.G.L. c. 272, sec. 99(B)(2).
No Evidence Was Introduced
Of A Recording At All.
There was no evidence that Mr. Manzelli recorded anything (let alone recorded anything secretly). No physical evidence was introduced, nor were any audiocassette tapes that the police purportedly retrieved played for the jury. Nobody gave a description of the purported recording device, nobody testified to recovering batteries for the recording device, nobody testified to seeing a red ÒrecordingÓ light on, and nobody testified to a recording being made. Put simply, there was absolutely no evidence of any recording on the part of Mr. Manzelli. Based upon the Supreme Judicial CourtÕs and the Massachusetts Appeal CourtÕs interpretation of General Laws chapter 272, section 99, the absence of a recording is fatal to the CommonwealthÕs case.
In Commonwealth v. Wright, 61 Mass. App. Ct. 790 (2004), the defendant was charged with unlawful wiretapping when he set up and concealed a video camera in the bathroom/utility room at work. Commonwealth v. Wright, 61 Mass. App. Ct. 790, 791 (2004). The bathroom/utility room was small and could hold only one person comfortably at a time. Id. at 792. The audio recording contained only snippets of voices and a few words. Id. The defendant argued that because the tape was Òvirtually inaudible,Ó his conviction was unwarranted. Id. at 792-93.
While the Appeals Court rejected the defendantÕs argument in Wright, it did so because isolated words on the audiotape were intelligible, and that was enough:
In effect, the judge indicated, and we agree, that the conversation or communication need not be intelligible; it is enough if isolated words are intelligible. . . . After the defendant argued there was insufficient evidence for a conviction of the wiretapping charge, the judge again listened to the tape (out of the presence of the jury) and determined that certain words were audible and, hence, that sufficient evidence existed to warrant a jury to find that there were words that were audible and understandable.
Id. at 793-94 (emphasis added). The Appeals Court also listened to the tape, and it found no error in the trial judgeÕs determination Òthat there was enough evidence on the tape for the question of the comprehensibility of words or conversation to be given to the jury.Ó Id. at 794, n.6.
In Commonwealth v. Hyde, 434 Mass. 594 (2001), a divided Supreme Judicial Court upheld the conviction for an unlawful wiretap. However, in doing so, the Court discussed the Rodney King videotape and whether George Holliday, the person who recorded the Rodney King beating, would have been prosecuted under the Massachusetts wiretapping statute. Id. at 605. The Court majority rejected the dissentÕs opinion that Holliday would have been prosecuted in Massachusetts since Òthe [Rodney King] recording was virtually inaudible, until electronic enhancements filtered the audio portion to allow the actual commands of the police officers to be heard.Ó Id. at 605, n.11. Thus, the Supreme Judicial Court suggested that Holliday would not have been prosecuted in light of the inaudibility of the recording.
Here, the evidence was even less than inaudible; it was non-existent. There was no recording, and hence no audible words. Consistent with Wright and Hyde, the denial of Mr. ManzelliÕs motion for a required finding of not guilty was error.
No Evidence Was Introduced Of A
Secret Recording.
Even if there were some evidence on the recording element (which, of course, there was not), there was absolutely no evidence that any recording was made secretly in contravention of the statute.
The Supreme Judicial Court has stated that the
Massachusetts wiretap statute is carefully nuanced and strikes a balance between the legitimate privacy interests of individuals in speech they wish to keep private and the need to equip law enforcement officials with the means to combat increasingly sophisticated organized criminal activities. . . See Commonwealth v. Gordon, 422 Mass. 816, 833 (1996) ("It is apparent from the preamble [to the statute] that the legislative focus was on the protection of privacy rights and the deterrence of interference therewith by law enforcement officers' surreptitious eavesdropping as an investigative tool").
Commonwealth v. Rivera, 445 Mass. 119, 123 (2005).
It is clear that the ÒLegislature intended that the statutory restrictions be applicable only to the secret use of such [recording] devices. . . . Thus, if the . . . recordings in this case were not made secretly, they do not constitute an ÔinterceptionÕ. . . .Ó Commonwealth v. Jackson, 370 Mass. 502, 505 (1976). The Jackson court went on to discuss the fact that the person being recorded had knowledge of the recording when there were Òclear and unequivocal objective manifestations of knowledge. . . .Ó Id., at 507. Knowledge that the conversation was being recorded could be inferred. Id.
In instructing the jury on the elements for a violation of General Laws chapter 272, section 99, the judge stated as follows:
In order to prove the Defendant guilty of this offense, the Commonwealth must prove two things beyond a reasonable doubt. First, that the Defendant willfully attempted to secretly record the content of any oral communication through the use of a device or apparatus that is capable of transmitting or recording oral communications without informing other, the other person or persons and obtaining their consent. The second is that the Defendant did so with the intent to record the contents of the oral communication. . . . The term oral communication means speech, except such speech as is transmitted over the public airways by radio or other similar device. The term interception means to secretly hear or secretly record the contents of any wire or oral communication through the use of an intercepting device by any person other than a person given prior authority by all parties to such communication. Now secretly has to be given its ordinary meaning, in a secret or hidden manner.
(T. 216-17).
Here, viewing the facts in the light most favorable to the Commonwealth, there was no evidence that Mr. Manzelli recorded anything, let alone recorded anything secretly. Officer Harer testified, Òas I looked down at Mr. ManzelliÕs [sic], in his hand, right by his jacket, sticking out of his jacket was a microphone. . . .Ó (T. 60-61). Similarly, Inspector Kenneally stated, ÒAnd it was sticking out right there . . . . [It was] about the size of a golf ball.Ó (T. 111-12). The fact that both Officer Harer and Inspector Kenneally saw the microphone that Mr. Manzelli was openly holding out from his coat means that Mr. Manzelli was not recording them secretly. Cf. Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 841 (1972) (equipment or information could not be considered ÒsecretÓ when in plain view of public, in trade secret context); Moore v. Marty Gilman, Inc., 965 F. Supp. 203, 217 (D. Mass. 1997) (same); Bonacorso Const. Co. v. Master Builders, Inc., 1991 WL 72796, *6 (D. Mass.) (same); cf. Reidy v. Crompton & Knowles Loom Works, 318 Mass. 135, 140-41 (1945) (if danger was open and obvious, it was not hidden); Lawler v. General Elec. Co., 1 Mass. App. Ct. 220 (1973) (defendant had duty to warn of hidden defects or dangers, not open and obvious ones).
For the same reasons, there was no evidence that Mr. Manzelli even attempted to secretly record anything. Since both Officer Harer and Inspector Kenneally testified that Mr. ManzelliÕs microphone was in plain view (as did Mr. Gillis), there was no way that a jury could find that Mr. Manzelli attempted to secretly record anything. Moreover, like in Hyde and Wright, the Commonwealth was not trying Mr. Manzelli for an attempt, but rather it was trying Mr. Manzelli for the actual commission of the illegal wiretap. In closing, the prosecutor argued, ÒHe suddenly realized that heÕs been found out, that he was recording.Ó (T. 191, emphasis added).
Since the Commonwealth failed to prove the element of a secret recording, the trial court erred in denying Mr. ManzelliÕs motion for required finding of not guilty.
THERE WAS NO EVIDENCE OF THE INTERCEPTION
OF AN ORAL COMMUNICATION.
General Laws c. 272, sec. 99 requires an interception of a wire or Òoral communication,Ó which is defined as Òspeech.Ó M.G.L. c. 272, sec. 99(B)(6), 99(B)(2). The statute does not itself define the term Òspeech.Ó In Commonwealth v. Wright, supra, the trial court instructed the jury that, ÒSpeech is defined as words spoken audibly and comprehensibly, either in conversation or alone.Ó Wright, 61 Mass. App. Ct. at 794 (emphasis added). The Appeals Court agreed with that instruction. Id. Thus, to be guilty of an illegal wiretap, Mr. Manzelli needed to secretly record spoken words. Here, there was no evidence that there were any words spoken, other than by Mr. Manzelli himself.
Officer Harer testified as follows:
Well I was standing there talking to the inspector, Mr. Manzelli came back over. Now heÕs within two or three feet of us and starts directing himself towards the inspector and screaming in a loud voice, is it true that Officer badge number 46 of the MBTA Police Department said that I canÕt take his picture and use it. And we couldnÕt understand why he was yelling at us, he was . . .
Q: Did you notice anything about the gentleman at that time?
A: At first no. And then when he continued to ask the questions of the inspector, the inspector turned to me and asked me if it was true what he said, no knowing [sic], and then as I looked down at Mr. ManzelliÕs, in his hand, right by his jacket, sticking out of his jacket was a microphone.
* * *
Q: What happened next?
A: At that time when I noticed it, I asked Mr. Manzelli if he was taping our conversation and if he was doing so without our permission. . . .
(T. 59-61).
Inspector Kenneally also failed to establish that he had said anything back to Mr. Manzelli. Inspector Kenneally said as follows:
Well, when I walked up, when I was talking, as I was talking to the two officers and no sooner had had some conversation how it was going, Mr. Manzelli had walked up and just about got in my face and started barking at me. Asked me a point of law.
* * *
Q: Mr. Manzelli approached you. What happened next?
A: Well he, he had asked me a question about a point of law, he was, he evidently that that I was the . . .
* * *
Q: What was the question he asked you?
A: He asked me if it was alright for him to photograph the police officers.
Q: And how did he ask that question?
A: Well he barked it, heÕs this far from my face and he barked it right at me.
* * *
Q: And after he asked that question. . .
A: Well he asked me twice and I ignored him both times, looking right at him, hoping heÕd run out of wind and ask me in a normal tone of voice.
(T. 108-110) (emphasis added). In other words, there was evidence that Mr. Manzelli spoke in a loud voice to Officer Harer and Inspector Kenneally, but there was no evidence that Officer Harer or Inspector Kenneally spoke any words to Mr. Manzelli, other than Officer Harer asking Òif he was taping our conversation,Ó which occurred after observing the microphone visibly protruding from Mr. ManzelliÕs coat.
Since there was no evidence for the jury to conclude that Mr. Manzelli recorded any speech, the trial court erred in failing to grant Mr. ManzelliÕs motion for a required finding of not guilty.
II. IT WAS REVERSIBLE ERROR AND VIOLATIVE OF THE DUE PROCESS AND FAIR TRIAL PROVISIONS OF THE UNITED STATES CONSTITUTION AND THE MASSACHUSETTS DECLARATION OF RIGHTS FOR THE JUDGE TO DENY THE DEFENDANTÕS MOTION FOR A REQUIRED FINDING OF NOT GUILTY WHERE THE EVIDENCE WAS INSUFFICIENT FOR A RATIONAL TRIER OF FACT TO CONCLUDE, BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT WAS GUILTY OF DISORDERLY CONDUCT.
General Laws chapter 272, section 53 provides that being an Òidle and disorderly personÓ is a punishable criminal offense. M.G.L. c. 272, sec. 53. The Supreme Judicial Court has interpreted ÒdisorderlyÓ in accordance with section 250.2 of the Model Penal Code:
A person is guilty of disorderly conduct if, with the purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (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.
Commonwealth v. Feigenbaum, 404 Mass. 471, 474 (1989), quoting Allegata v. Commonwealth, 353 Mass. 287, 304 (1967); see also Commonwealth v. Chou, 433 Mass. 229, 231-32 (2001).
Here, Officer Harer testified that Mr. Manzelli took photographs of him (T. 57-58), threw a recording device and audiocassettes towards the crowd (T. 62), hollered to the crowd to take the tapes (T. 62), threw an audiocassette that hit a woman in the head (T. 65-66), and threw a camera towards the crowd (T. 68-69), in that order. On cross-examination, Officer Harer admitted that he was arresting Mr. Manzelli for disorderly conduct prior to him throwing the audiocassette that allegedly hit the woman; throwing the audiocassette had nothing to do with the decision to arrest him. (T. 76-77). Thus, Mr. ManzelliÕs actions that gave rise to the disorderly conduct charge and conviction had to have been taking photographs, throwing the recording device and audiocassettes towards the crowd, or hollering to the crowd to take the tapes.
Mr. Manzelli taking photographs cannot have formed the basis for the disorderly conduct conviction---indeed, Officer Harer admitted that Mr. Manzelli had a right to take photographs while on public property. (T. 74). Mr. Manzelli hollering to the crowd to take the tapes could not have formed the basis for the disorderly conduct conviction. See Commonwealth v. Sholley, 48 Mass. App. Ct. 496, 500 (2000) (Òwords alone, however, including vulgar, profane and offensive speech, do not constitute conduct cognizable as disorderly conductÓ). Thus, the only action of Mr. Manzelli that arguably could have formed the basis of the disorderly conduct arrest and conviction was allegedly throwing the recording device and audiocassettes towards the crowd.
Mr. Manzelli throwing his property towards a sympathetic crowd to protect it from improper police seizure is a legitimate interest. This is especially so since the personalty that Mr. Manzelli tossed were the tools of his trade. See Commonwealth v. Zettel, 46 Mass. App. Ct. 471 (1999) (ÒmotherÕs interest in picking up her six and one-half year old son when he was released from school falls within the definitionÓ of a Òlegitimate purposeÓ); cf. Commonwealth v. A Juvenile, 368 Mass. 580, 597 (1975) (throwing stinkbombs toward crowd serves no legitimate purpose); State v. Stampone, 775 A.2d 193 (N.J. Super. A.D. 2001) (preventing police officer from performing duties may be element of resisting arrest but not of disorderly conduct). Since it cannot be said that Mr. ManzelliÕs actions constituted a hazardous or offensive condition that served no legitimate purpose, he was entitled to a required finding of not guilty on Count Two, the disorderly person count.
III. THE TRIAL JUDGEÕS INSTRUCTIONS, WHICH ERRONEOUSLY CHARGED THE JURY THAT THEY MAY NOT CONVICT THE DEFENDANT ON THE DISORDERLY CONDUCT CHARGE IF THEY FOUND THAT THE DEFENDANTÕS ACTIONS WERE BASED ON LEGITIMATE NEWS GATHERING ACTIVITIES, CREATED A SUBSTANTIAL LIKELIHOOD OF A MISCARRIAGE OF JUSTICE.
As to Count Two, the trial judgeÕs instructions were as follows:
The first, the Commonwealth must prove that the Defendant involved himself in at least one of the following actions. One, he either engaged in fighting or threatening. Or two, he engaged in violent or tumultuous behavior. Or three, he created a hazardous or physically offensive condition by an act that served no legitimate purpose of the DefendantÕs. Secondly, the Commonwealth must prove beyond a reasonable doubt that the DefendantÕs actions were reasonably likely to affect the public. The third, the Commonwealth must prove beyond a reasonable doubt that the Defendant either intended to cause public inconvenience, annoyance or alarm, or he recklessly created risk of public inconvenience, annoyance or alarm. You have heard discussions of the Defendant being a reporter and you need to know that he may not be convicted of disorderly conduct based solely on any activities that are protected by the First Amendment. Therefore, you may not convict the Defendant if his actions were based on legitimate news gathering activities.
(T. 214-15) (emphasis added).
Unless the Commonwealth proved fighting or threatening or violent or tumultuous conduct within the meaning of section 250.2(1)(a) of the Model Penal Code, in order to meet its burden, the Commonwealth must have proven that Mr. ManzelliÕs actions served no legitimate purpose. See Feigenbaum, 404 Mass. at 475-76. Here, however, the judge equated Mr. ManzelliÕs legitimate purpose for his actions with Òlegitimate news gathering activities.Ó Such an instruction was substantially likely to create a miscarriage of justice. If the jury found that Mr. ManzelliÕs actions were legitimate (such as to protect his equipment from improper police seizure or to participate in an anti-war rally), but not necessarily for legitimate news gathering (such as for a network news station), then there is a substantial likelihood that it convicted him improperly. See Commonwealth v. Freeman, 352 Mass. 556 (1967) (in absence of objection, Court must determine whether substantial likelihood of miscarriage of justice results from erroneous charge).
Not only did the judge improperly limit the term Òlegitimate purposeÓ to Òlegitimate news gathering activities,Ó the judge also improperly shifted the burden of proof from the Commonwealth to Mr. Manzelli regarding the Òlegitimate purposeÓ element. That is, to prove disorderly conduct, the Commonwealth had to prove beyond a reasonable doubt that Mr. Manzelli created a hazardous or physically offensive condition by an act which served no legitimate purpose. See Feigenbaum, 404 Mass. at 474. However, by instructing the jury that, ÒYou may not convict the Defendant if his actions were based on legitimate news gathering activities,Ó the judge suggested that Mr. Manzelli had the burden of establishing that his actions were legitimate news gathering activities. The instruction implied that legitimate news gathering activities mitigate or negate disorderly conduct, placing the burden on Mr. Manzelli to prove such legitimate news gathering activities. Of course, such an instruction is improper in two respects: first, the burden is on the Commonwealth, and second, to be legitimate, Mr. ManzelliÕs activities need not have been limited to news gathering. Nor does it matter that the judge gave a proper charge initially and then gave an erroneous charge. See Commonwealth v. Acevedo, 427 Mass. 714, 717 (1998) (Òdescribing the burden of proof in contradictory language not resolved in the charge may raise a constitutional questionÓ). In light of the improper burden-shifting instruction, there is a substantial likelihood that the jury convicted Mr. Manzelli improperly.
CONCLUSION
For the reasons stated above, the judgments must be reversed.
Respectfully submitted,
JEFFREY D. MANZELLI,
By his attorney,
David P. Russman (BBO 567796)
The Russman Law Firm, P.C.
194 E Street, Suite 1
Boston, MA 02127
617.464.2332
Certificate of Service
I, David P. Russman, hereby certify that I served a true copy of the above document upon the following on October 31, 2005 via first-class mail:
John P. Zanini, ADA
District AttorneyÕs Office
One Bulfinch Place
Boston, MA 02114
David P. Russman
ADDENDUM
REMOVE PAGE
REMOVE PAGE
REMOVE PAGE
RECORD APPENDIX
TABLE OF CONTENTS
DOCKET ENTRIES
NO. 0201-CR-5084 . . . . . . . . . . . R-1
COMPLAINT . . . . . . . . . . . . . . . R-13
DEFENDANTÕS MOTION FOR
REQUIRED FINDING OF NOT GUILTY . . . . . . . . R-14
DEFENDANTÕS REQUEST FOR JURY INSTRUCTIONS . . . . R-15
VERDICT SLIP NO. 1 . . . . . . . . . . . . R-33
VERDICT SLIP NO. 2 . . . . . . . . . . . . R-34
NOTICE OF APPEAL . . . . . . . . . . . . R-35
The Record Appendix, found at the end of this Brief, will be referred to as (R. __). The transcript of the proceedings of May 22, 2003 and May 23, 2003 are contained in one volume, and the transcript will be referred to by page as (T. __).
Consistent with Officer HarerÕs testimony that Mr. Manzelli held the microphone Òin his hand, right by his jacket, sticking out of his jacketÓ is Officer HarerÕs police affidavit, in which he said, ÒI then noticed that Mr. Manzelli was holding a microphone in his left hand angled up towards us. . . .Ó (T. 76).
The audiocassette purportedly struck a woman in the head, but neither Officer Harer nor Officer Riel obtained the name of the woman. (T. 66, 76). Further, Officer Harer admitted that Mr. Manzelli throwing the audiocassette had nothing to do with the decision to arrest him. (T. 76, 77).
Officer Riel obtained neither the name of the woman who purportedly elbowed her nor the name of the woman who purportedly was struck in the head with the audiocassette inside the Park Street Station. (T. 94).
There was testimony from Steven Gillis that Mr. Manzelli dropped a tape recorder when being arrested. (T. 166-67). However, neither Officer Harer nor Officer Riel testified to that or that one was recovered.
|
