Dziekonski v. State

THIEME, Judge. Appellant, Pamela Dziekonski, was charged with assault in the second degree and disorderly conduct. A jury sitting in the Circuit Court for Montgomery County found her guilty of disorderly conduct and the court imposed a generally suspended sentence. Appellant noted a timely appeal and presents three questions for our review: I. Did the trial court err in its instructions to the jury?

II

Did the trial court admit prejudicial and irrelevant evidence?

III

Was the evidence sufficient to sustain appellant’s conviction? We answer appellant’s first question in the affirmative and reverse and remand her case for a new trial. We need not reach appellant’s second question as it is unlikely to recur on re-trial. Ordinarily, this Court would address appellant’s third question because re-trial is not permitted if the evidence was insufficient.

Mackall v. State, 283 Md. 100, 113-14 , 387 A.2d 762 (1978). In the present case, however, that question is not properly preserved for our review. FACTS During the late evening hours of March 3 and early morning hours of March 4,1998, appellant and her husband were in the bar area of the Village Cafe, which is located in Gaithersburg. ¹⁹⁵ At trial, Brenda Reed, the bartender, testified that she had served appellant five or six beers and two or three “shooters.” After another couple entered the cafe, an argument arose between them and the Dziekonskis. The argument became “very, very loud” and Ms. Reed asked the other couple to leave.

According to Ms. Reed, appellant “went after the couple” as they were leaving and tried to kick the man. Ms. Reed restrained appellant, but observed appellant’s husband leave the bar through another door. Ms. Reed then called the police and, within fifteen minutes, approximately six officers responded to the bar. In the meantime, appellant’s husband re-entered the bar and went into the bathroom.

Police Officers William Thomas and Steven Phelps were among the officers who responded to the Village Cafe. Officer Phelps remained outside with the assault victim. Officer Thomas went into the bar and found appellant’s husband in the bathroom. Officer Thomas escorted appellant’s husband into the restaurant area and had him sit down.

The officer explained that the restaurant was a separate area, but was in “clear view” of the bar. After her husband was seated, appellant approached the officer and related her version of the dispute. Officer Thomas testified that appellant was calm and spoke in a normal tone of voice, but she appeared to be “highly intoxicated.” When Officer Thomas placed appellant’s husband under arrest for first degree assault and put him in handcuffs, appellant yelled, “This is bullshit, he didn’t fucking do anything....” Officer Phelps was then in the restaurant and spoke to appellant, telling her to calm down, keep her mouth shut, and stop yelling. Officer Phelps also told appellant that if she did not quiet down she would be arrested.

The officer testified that appellant was in close proximity to Officer Thomas, “was extremely loud, yelling and belligerent, seemed to be interfering with Officer Thomas’ ability to handle the suspect and make his arrest there and make his search.” Officer Phelps told appellant that she needed to quiet down and appellant responded, “[W]hy are you locking up my fucking husband?” and, “[T]his is bullshit, you’re locking up the wrong guy.” ¹⁹⁶ According to Officer Thomas, appellant kept yelling, “If you’re going to arrest him, you’re going to have to arrest me, too.” Officer Phelps testified that ten to fifteen bar patrons “were milling around looking at this scene, looking at us and looking at her.” Appellant continued to yell and scream and Officer Phelps told her to calm down, but when she said, “I want to go with my fucking husband,” he told her she was under arrest for disorderly conduct. Officers Thomas and Phelps testified that, as Phelps moved toward appellant to place her in handcuffs, she hit him in the chest with her fist. Officer Phelps and a third officer pushed appellant against the wall and handcuffed her. Appellant was transported to the Central Processing Unit and then taken to the hospital, where she was examined for an injury to her head that was sustained when the officers pushed her against the wall.

Appellant testified in her own defense that she was trying to tell the officers that her husband had a leg injury, 1 that he had been defending himself, and that they were taking the wrong person to jail. She stated that Officer Thomas was “very nice” and had told her where the police were taking her husband. Appellant testified that she was “loud” and “upset” and that Officer Phelps came toward her, told her to shut her mouth, and then arrested her. Another officer came to assist Phelps and one of them beat her head against the wall.

DISCUSSION I. The trial court instructed the jury on the offense of disorderly conduct, stating: The first charge is disorderly conduct and the second charge is assault in the second degree. So let me tell you about disorderly conduct. This is in the nature of a definition of disorderly conduct. A person [may] not act in a disorderly manner to the ¹⁹⁷ disturbance of the public peace in any public resort or amusement in any county in this State.

The gist of the crime of disorderly conduct is the doing or saying or both of that which offends, disturbs, incites, or tends to incite a number of people gathered in the same area. Disorderly conduct is conduct of such a nature as to affect the peace and quiet of persons who may witness the same and who may be disturbed or provoked to resentment thereby. Disorderly conduct is conduct of such nature as to affect the peace and quiet of persons actually present who may witness the conduct or hear the language and who may be disturbed or provoked to resentment thereby. Disorderly conduct required the actual presence of other persons who may witness the conduct and hear the language and who may be disturbed or provoked to resentment thereby.

Refusal to obey a proper order of an officer may constitute an offense justifying an arrest, particularly where there is profanity in the presence of others that may threaten a breach of the peace. Defense counsel objected to this instruction and argued: Your Honor, I have filed with the Court a requested jury instruction regarding disorderly conduct. Now, first I would like to say that the Court needs to tell them that the Defendant must have acted willfully. Willfully is an element of this offense, that she willfully acted in a disorderly manner and that her purpose was to disturb the public peace.

I would also ask that the Court tell them that acting in a disorderly manner can be doing or saying, as the Court said. However, if the disorderly conduct is based on saying something, the First Amendment severely limits what the language — what language may be considered disorderly. The constitution protects a person’s right to say anything not willfully said for the purpose of disturbing the public peace, and not obscene. “Obscene” has been defined as highly erotic and not fighting words, words that have been defined as words that ¹⁹⁸ provoke — an act of violence and start of a riot — even when directed to the police are protected by the First Amendment. Protected speech may not form the basis for a charge of disorderly conduct.

If the speech used by the Defendant are protected [sic], the jury must find the defendant not guilty. The written instruction filed with the court provided: In order to convict the Defendant of the crime of Disorderly Conduct, the State must prove each element beyond a reasonable doubt. The four elements of Disorderly Conduct are: 1. The Defendant willfully acted in a disorderly manner to the disturbance of the public peace; 2.

The Defendant did so in the actual presence of other persons; 3. Those other persons were disturbed or provoked to resentment; and 4. The Defendant did act disorderly in a public resort or amusement, a store during business hours or in any public building. Acting in a disorderly manner has been defined as the doing, or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area.

However, if the disorderly conduct is based on saying something (rather than doing something), the First Amendment severely limits what language may be considered disorderly. The Constitution protects a person’s right to say anything, not willfully said for the purpose of disturbing the public peace, and not obscene (highly erotic) or fighting words (words that provoke an average listener to an act of violence or to start a riot). Curses, even when directed to the police, are protected by the First Amendment. Protected speech may not form the basis for a charge of disorderly conduct.

If the speech used by the ¹⁹⁹ Defendant was protected, you must find her not guilty. [Emphasis in original.] The trial court declined to give the requested instruction. Appellant contends that the court erred in failing to instruct the jury that her conduct had to be willful and that her speech may be protected. We address these arguments separately, but first set forth the trial court’s duty to give jury instructions requested by a party in a criminal ease. Maryland Rule 4~-325(c) provides: The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.

The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given. In accordance with this Rule, “a trial judge must give a requested instruction that correctly states the applicable law and that has not been fairly covered by the instructions actually given.” Mack v. State, 300 Md. 583, 592 , 479 A.2d, 1344 (1984). To merit an instruction, however, “the issue as to which the request is made must have been generated by the evidence adduced.” State v. Martin, 329 Md. 351, 357 , 619 A.2d 992 , cert. denied, 510 U.S. 855 , 114 S.Ct. 161 , 126 L.Ed.2d 122 (1993).

See also Hof v. State, 337 Md. 581, 612 , 655 A.2d 370 (1995) (Rule 4-325(c) “has been interpreted to require that a requested instruction be given only when there is evidence in the record to support it.”); Davis v. State, 104 Md.App. 290, 293 , 656 A.2d 326 (1995) (“It is incumbent upon the trial court, on request in a criminal case, to give an advisory instruction on every point of law essential to the crime charged and supported by evidence.”). Did the trial court err in declining to instruct the jury that appellant’s conduct had to be willful? Appellant first claims that the crime of disorderly conduct includes an element of willfulness and that omitting this ²⁰⁰ element would turn the crime into a strict liability offense. She stresses that such offenses are disfavored.

Appellant contends that, by failing to instruct the jury that she must have willfully engaged in the disorderly conduct, the trial court omitted an essential element of the offense. In light of such an omission, she argues, the jury could have easily reached the erroneous conclusion that by speaking loudly and using vulgar language in her conversation with the police officers, although she possessed no intention to affect the other patrons, she was necessarily guilty of disorderly conduct. Appellant was convicted of disorderly conduct under Md. Code (1957, 1996 Repl.Vol.), Art. 27, § 123, 2 which provides, in relevant part: (a) Prohibited conduct. — A person may not act in a disorderly manner to the disturbance of the public peace, upon any public street, highway, alley, park or parking lot, or in any vehicle that is in or upon any street, highway, alley, park or parking lot, in any city, town, or county in this State, or at any place of public worship, or public resort or amusement in any city, town or county in this State, or in any store during business hours, or in any elevator, lobby or corridor of any office building or apartment house having more than three separate dwelling units, or in any public building in any city, town or county of this State. In Reese v. State, 17 Md.App. 73 , 299 A.2d 848 (1973), this Court determined that under § 123, the actor’s conduct must be willful: [T]he gist of the crime under the statute, as it was in the cases of common law predecessor crimes, is the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area.

In other words, it is conduct of such a nature as to ²⁰¹ affect the peace and quiet of persons actually present who may witness the conduct or hear the language and who may be disturbed or provoked to resentment thereby.... Implicit in § 123 is the prohibition against a person wilfully acting in a disorderly manner by making loud and unseemly noises or by profanely cursing, swearing or using obscene language. 17 Md.App. at 80 , 299 A.2d 848 (emphasis added). In light of our decision in Reese , we conclude that the trial court erred in declining to instruct the jury that appellant had to engage willfully in the conduct at issue. Appellant is incorrect, however, that she had to act for the purpose of disturbing the public peace.

The effect of the actor’s conduct need only be that the peace was disturbed. To include the requirement that she must have acted for the purpose of disturbing the peace would add an element not within the plain language of the statute. See Amalgamated Casualty Ins. Co. v. Helms, 239 Md. 529, 534-35 , 212 A.2d 311 (1965) (“To supply omissions [in a statute] transcends the judicial function.”).

In sum, the trial court erred in declining to instruct the jury that appellant’s conduct had to be willful, but correctly declined to instruct that appellant had to act for the purpose of disturbing the public peace. Did the trial court err in declining to instruct the jury that protected speech cannot form