NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us.

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 settingspecific 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 'hurlyburly' 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).