Appendix — Chemalali v. District of Columbia

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District of Columbia Court of Appeals

No. 94-CO-504 ag

ty 7

Hau CHEMALALI, APPELLANT, AY ;

‘2 D 4

District or Cotumsia, APPELLEE.

—

“J

v. ‘aig f

; 8

Appeal from the Superior Court of the os 7

Distriet of Columbia 5 ys

(Hon. Nicholas S. Nunzio, Trial Judge) . “

(Argued February 14, 1995 Decided March 20, 1995)

David Tillotson for appellant.

Sidney Bixler, Assistant Corporation Counsel, with whom

Vanessa Ruiz, Corporation Counsel at the time the brief was

filed, Robert Rigsby, Deputy Corporation Counsel, and Rosa-

lyn Calbert Groce, Assistant Corporation Counsel, were on the

brief, for appellee.

Before Wacner, Chief Judge, Terry, Associate Judge, and

Kern, Senior Judge.

Wacner, Chief Judge: Appellant, Hamid Chemalali, was con-

victed following a bench trial of disorderly conduct under D.C.

Code § 22-1121 (1) (1989). The information charged that

Chemalali, “under circumstances such that a breach of the

peace might be occasioned thereby [did] act in a manner as to

annoy, disturb, interfere with, obstruct and be offensive to

others by acting loud and boisterous, kicking at citizens in

violation of Section 22-1121 (1) of the District of Columbia

*

Code.” He argues on appeal that his conduct did not consti-

tute a crime under the law of the District of Columbia and

that his First Amendment rights were violated in that the

conduct leading to his arrest and conviction consisted “almost

entirely of speech.” We conclude that the evidence was suffi-

cient to prove the crime charged and that the conduct for

which appellant was arrested and convicted did not implicate

his First Amendment rights.

According to the testimony of Harold Cunningham, a Met-

ropolitan Police officer, the circumstances which occasioned

appellant's arrest occurred as follows. Officer Cunningham

was engaged in a traffic stop in the 3100 block of M Street,

N.W. on November 17, 1993 when a citizen stopped him to

report a disturbance across the street and to request assis-

tance before things “got worse.” The officer looked across the

street and saw appellant and another man walking behind a

group of people at whom they were hitting and kicking.

Appellant's hitting and swinging motions came within inches

of the people, and the officer saw a couple of them look back.

The officer called out to appellant and his companion, crossed

the street to defuse the situation, and warned them to calm

down or they would be arrested for disorderly conduct. Ap-

pellant and his companion, who appeared to have consumed

alcoholic beverages, began to curse loudly at the officer and

at the citizen who had reported them. Among the comments

that appellant yelled were “F{[—-] you. I know my rights. I

can walk. This is a public street.” Officer Cunningham told the

men to leave the area, but they refused. Appellant and his

companion became louder, more excited, and more abusive

toward the officer, and they shouted profanities at the officer

and at the complaining citizen, who by this time had crossed

the street at the officer's behest. The officer called for back-

up police assistance.

Officer Cunningham testified that people were beginning to

come out of the bars in the area and that a bouncer from one

— —— ä — . EEE

of the establishments started over to assist him. According to

Officer Cunningham, appellant was “poking his finger and

hollering at the other citizens . . . that were coming out.” A

crowd began to form, and appellant was poking his finger at

the crowd and saying, “You see what's going on. You see

what's going on. This is LA all over again.” The officer testi-

fied that he was concerned about the crowd forming, as it was

his experience that such circumstances might lead to fights

erupting among the crowd. After other officers arrived, the

police arrested appellant and his companion for disorderly

conduct.

First, appellant argues essentially that the evidence was

insufficient to support his conviction under D. C. Code § 22

1121 (1). In determining a claim of evidentiary insufficiency,

this court views the evidence in the light most favorable to

the government, recognizing that it is within the province of

the fact finder to weigh the evidence, to determine the cred-

ibility of the witnesses, and to draw reasonable inferences

from the evidence. Leonard v. United States, 602 A.2d 1112,

1114 (D.C. 1992) (citations omitted); Jn re A.B., 556 A.2d 645,

649 n.8 (D.C. 1989). Viewed against that standard, the evi-

dence was adequate to support the conviction.

The statute under which appellant was convicted provides

in pertinent part as follows:

Whoever, with intent to provoke a breach of

the peace, or under circumstances such that a

breach of the peace may be occasioned thereby: (1)

Acts in such a manner as to annoy, disturb, inter-

fere with, obstruct, or be offensive to others

shall be fined not more than $250 or imprisoned not

more than 90 days, or both.

1 Appellant testified in his own behalf, but his testimony is not a

part of the record on appeal.

D.C. Code § 22-1121 (1). Appellant contends that there was no

evidence that his conduct actually annoyed, disturbed, inter-

fered with, obstructed, or offended anyone as required by the

statute. The trial court, crediting the officer’s testimony,

found otherwise. Specifically, the trial court found that appel-

lant was kicking and jabbing at individuals on the street and

that his conduct disturbed those people.? The court also de-

termined that appellant’s offensive shouting disturbed people

present other than the officer.’ “We are bound by the trial

court's factual findings unless clearly erroneous or not sup-

2 In a case tried without a jury, the trial court need only make a

general finding except that upon a “request made before the

general finding, [the court shall] find the facts specially. Super. Ct.

Crim. R. 23 (c). Here, the trial court made its finding of guilt before

appellant's counsel requested that the court make specific findings

concerning what aspect of appellant’s conduct constituted a crime.

Nevertheless, the trial court found specially the facts which

resulted in the guilty verdict. While the court requested the

government to articulate the basis for its determination, and we do

not suggest that this is the best way to make findings, the court

clearly adopted as its findings the recitation of the facts set forth by

the prosecutor. The determination proceeded as follows:

GOVERNMENT COUNSEL: Your Honor, Officer

Cunningham, talked about him kicking at individu-

als, punching at individuals, and if the Court

believes that happeried, then, of course, under the

case that I just cited [Rodgers v. United States, 290

A.2d 395 (D.C. 1972)] and under this particular

282 that in and of itself is enough for the Court

to ie

THE COURT: I accept that.

THE COURT: — and I accept the officer's testi-

mony — for other people. I find that this, indeed,

was the basis of the officer's [arrest] —

3 The mtg bags 4 between the trial court and defense

counsel reflects court's determination that appellant's conduct

disturbed others:

ported by substantial evidence.” Holston v. United States, 633

A.2d 378, 386 n.10 (D.C. 1993) (citations omitted); accord,

Johnson v. United States, 616 A.2d 1216, 1234 (D.C. 1992). This

court must defer to the trial court's determinations of credi-

bility. Id. The trial court's findings are supported by the

record; therefore, we accept them.

Appellant's conduct, as found specially by the court, consti-

tuted disorderly conduct within the meaning of the statute. It

is apparent that kicking and jabbing at pedestrians on the

street are offensive actions which would tend to disturb,

annoy and interfere with those individuals, as the trial court

found.‘ Such conduct is of the type which is likely to provoke

the person against whom it is directed, such that a breach of

the peace might occur. Thus, it falls within the prohibition of

D.C. Code § 22-1121 (1).

Proof of actual or impending breach of the peace is not

required for conviction under the disorderly conduct statute.

Rodgers, supra note 2, 290 A.2d at 396; Scott v. District of

DEFENSE COUNSEL: Your Honor, for the pur-

poses of my appeal, could you articulate what

aspect of their conduct you believe was a crime?

Was it the fact that there was a crowd that might

have been offended? Was it the fact that they sup-

—— shouted or were offensive to the police

0

THE COURT: It had nothing to do with the police

officer.

3 COUNSEL: Well, who did the [sic] dis-

tu

THE COURT: There were other people there.

4 We reject any contention that the initial stop which led to

appellant’s arrest was unlawful. See D.C. Code § 23-581 (a)(1)(B)

(1989) (law enforcement officer may arrest without a warrant one

whom he has reason to believe is committing an offense in his

presence).

Columbia, 184 A.2d 849, 851 (D.C. 1962). It is only required

that the alleged conduct occur “under circumstances such that

a breach of peace may be occasioned thereby.” Rockwell v.

District of Columbia, 172 A.2d 549, 552 (D.C. 1961). The police

need not await an outbreak of violence before attempting to

control the situation by making a disorderly conduct arrest.

Gueory v. District of Columbia, 408 A.2d 967, 970 (D.C. 1979);

Rodgers, 290 A.2d at 400. We are satisfied that appellant's

arrest and conviction fell within the strictures of these prin-

ciples.

However, appellant contends that he was not cited and

arrested for kicking, swinging, and poking his fingers at citi-

zens, and therefore, this conduct cannot be relied upon to

sustain his conviction under D.C. Code § 22-1121 (1). This

claim is belied factually by the record. In response to defense

counsel's question concerning whether he had arrested appel-

lant essentially for continuing to argue about the incident, the

officer testified that it was not just for arguing, but for appel-

lant yelling profanities, drawing people out of the bars, and

all the other matters which he had mentioned in his testi-

mony. The other matters about which the officer had testified

previously involved appellant kicking and swinging at the peo-

ple as they walked along the street and later poking his finger

at citizens who formed the crowd. The charging information

also contains the specific reference to “kicking at citizens.”

Additionally, Officer Cunningham's police report, about which

defense counsel had him testify, in setting forth the circum-

stances leading to appellant's arrest, makes reference to ap-

pellant yelling, kicking and poking his finger at citizens. Thus,

appellant’s contention that he was not cited, arrested, and

convicted for this particular conduct is unfounded.

Appellant also argues that there was no evidence that his

yelling and screaming “annoyed, disturbed, interfered with,

obstructed, or was otherwise offensive” to anyone other than

the police officer. This contention is not borne out by the

record. According to the evidence which was credited by the

trial court, appellant shouted profanities at the officer, the

complaining citizen on the scene, and other people on the

street. His words and actions attracted a crowd and caused a

bouncer whom the officer knew to start to come to his aid.

Moreover, appellant's conduct was not merely loud and bois-

terous, nor was it designed to express ideas. It consisted

primarily of profanities and provocative language. The officer

testified that appellant and his companion yelled profanities

and became abusive towards him “and the citizens there” and

that appellant poked his finger toward the citizens, saying at

one point, “You see what's going on. This is LA all over

again.“ Such comments and actions were of the type which

seemed to invite some action or reaction from the crowd.

Epithets and words of personal abuse are not in any real

sense a communication of information safeguarded by First

Amendment protections, and such conduct may, under cer-

tain circumstances, be subject to punishment as a criminal

act. Rockwell, supra, 172 A.2d at 551 (quoting Cantwell v.

Connecticut, 310 U.S. 296, 309-10 (1940)); see also Rodgers,

supra note 2, 290 A.2d at 400. The fact that during the course

of the offensive conduct which led to his arrest, appellant also

expressed an idea about his rights, does not mean that he may

engage in conduct consisting of kicking, poking, and shouting

profanities at citizens with impunity.

We have held that words and actions likely to produce

violence on the part of others are included within the purview

of breach of the peace. Rodgers, supra note 2, 290 A.2d at 397.

Appellant argues that the facts which formed the basis for the

decision in Rodgers bear no resemblance to those present in

this case. Appellant is correct that the defendant's conduct in

Rodgers was far more egregious than appellant’s conduct in

5 This is an apparent reference to an incident captured on

videotape and widely shown on television in which the police in Los

2 are seen immobilizing a citizen with a stun gun and beating

im.

this case.* However, the difference is one of degree. The

principles extracted from the Rodgers case are applicable to

this case. If an individual engages in actions in a manner to

disturb, annoy or be offensive to others under circumstances

where a breach of the peace might be occasioned thereby,

that individual may be convicted under § 22-1121 (1). Rodgers,

supra note 2, 290 A.2d at 397. Proof of an actual breach of the

peace is not required. Id. at 396. So long as the alleged offen-

sive conduct rises to the level that a breach of the peace might

be provoked by the conduct, it is prohibited by statute.

Appellant’s conduct was such as to come within the ambit of

the statute. Under the circumstances, the officer did not have

to await the occurrence of an actual breach of the peace be-

fore arresting appellant. Gueory, supra, 408 A.2d at 970.’

6 In the defendant, in an effort to gain entry to a concert

for which he had no ticket, over a two-hour period, “sought the

assistance of the crowd outside by shouting obscenities at the

campus policemen inside the auditorium and by threatening to kick

down one of the doors if the crowd would follow.” 290 A.2d at 396.

The court rejected Rodgers’ argument that D.C. Code § 22-1121 (1)

requires for conviction an intent to provoke a breach of the peace.

Id. The court also rejected his claim of insufficiency of the evidence,

concluding that he was convicted of disorderly conduct carried out

2 circumstances which might occasion a breach of the peace.

Id. at 397.

that in making the arrest, the officer is not protecting himself from

the offensive and conduct, but trying to prevent a breach

of the peace. Id. at 970. Appellant contends that the holding in

Gueory no longer good law in light of the Supreme Court's

decision in Houston v. Hill, 482 U.S. 451 (1987). We need not decide

this issue because, to the extent that Gueory can be read properly

to sanction a conviction solely for use of profane language in a

public place, its facts are distinguishable from the case before the

court. The conduct relied upon to support the appellant's arrest and

Appellant also argues that his arrest and conviction under

D.C. Code § 22-1121 (1) under the facts of this case violate the

principle that criminal statutes must be strictly construed.

See FCC v. American Broadcasting Companies, 347 U.S. 284,

296-97 (1954); United States v. Moore, 198 U.S. App. D.C. 296,

310, 613 F.2d 1029, 1043, cert. denied, 446 U.S. 954 (1979). He

contends that the prohibition against engaging in loud and

boisterous conduct is addressed in two other sections of the

Code, 8§ 22-1121 (3) and -1107 (1989).* He argues that, follow-

ing the requirement that criminal statutes must be strictly

construed, the fact that §§ 22-1121 (3) and -1107 set forth

specific circumstances under which loud and boisterous con-

duct is subject to criminal sanction must mean that the sec-

tion of the code under which he was charged cannot also be

construed as proscribing shouting, yelling or engaging in loud

and boisterous conduct. Appellant does not contend that § 22-

1121 (1) is unconstitutional on its face. He contends only that

strict construction principles preclude § 22-1121 (1) from

being interpreted as making his verbal conduct a crime.

The well-established strict construction principle requires

that penal statutes be strictly construed. Moore, supra, 198

U.S. App. D.C. at 310, 613 F.2d at 1043; see also American

Broadcasting Co., supra, 347 U.S. at 296. This rule of inter-

pretation means that penal statutes

and conviction in this case is not solely verbal conduct protected by

the First Amendment.

8 D.C. Code § 22-1121 (3) makes it a crime for anyone, with intent

to provoke a breach of the peace or under circumstances that a

breach of the peace may be occasioned thereby to “shout{] or

make[] a noise either outside or inside a building during the night-

time to the annoyance of any considerable number of persons.” D.C.

Code § 22-1107 makes it a crime for persons to congregate in a

public space and engage in loud and boisterous conduct.

10

are not to be broadened by intendment, and uncer-

tainty respecting their ambit is to be resolved in

favor of lenity.

Moore, 198 U.S. App. D.C. at 310, 613 F.2d at 1043 (internal

footnotes and citations omitted). However, this rule of con-

struction does not require that the law be given its most

narrow purpose nor “so strictly [construed] as to defeat the

intention of the legislature.” Id. at 311, 613 F.2d at 1044. It is

appellant's position that the statute as applied to his verbal

conduct failed to give clear and adequate notice of the type of

conduct which would subject him to criminal penalties. A

criminal statute must define an offense “with sufficient defi-

niteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary

and discriminatory enforcement.” Kolender v. Lawson, 461

U.S. 352, 357 (1983); German v. United States, 525 A.2d 596,

605-06 (D.C. 1987).

Appellant concedes that the acts or conduct of the type

involved in Rodgers, supra note 2, may be properly punishable

under § 1121 (1). As previously discussed, the conduct in Rod-

gers consisted of the defendant shouting obscenities at police-

men and threatening to kick down one of the doors to an

auditorium to which he sought admission without a ticket.

This court determined in Rodgers that the conduct was pun-

ishable under § 1121 (1) which addresses disorderly conduct

“carried out under circumstances whereby a breach of the

peace might have been occasioned.” 290 A.2d at 397. To ad-

vance his position on this issue, appellant seeks to isolate

some of his verbal expressions, which standing alone might

not be subject to criminal penalty. However, the trial court

clearly based its findings on other aspects of appellant’s con-

duct which were set forth in the criminal information. We do

not read appellant’s argument to challenge these particular

grounds as a valid basis for conviction under § 1121 (1). We

have previously determined in this opinion that the court's

finding in this regard was supported by the record. Thus, we

11

need not decide whether the statute might violate due pro-

cess on the version of the facts which appellant seeks to

portray on appeal.

IV.

Finally, appellant argues that his conviction cannot be up-

held because the verdict was a general one, and therefore,

there is no way of knowing whether the conviction was based

on speech which falls within the protection of the First

Amendment. See Terminiello v. Chicago, 337 U.S. 1, 5 (1949).

The record reflects that the trial court specially found the

facts.“ It is clear that the trial court based its verdict on

appellant's conduct in kicking and hitting at people in the

street. Evidence of this conduct alone was sufficient to sup-

port appellant's conviction for disorderly conduct.

For the foregoing reasons, the judgment of conviction ap-

pealed from hereby is

Affirmed.

9 See discussion in part II and note 2, supra.