2011-830, State of New Hampshire v. Samuel Biondolillo

The defendant, Samuel Biondolillo, appeals his conviction,

the brief and orally) for the defendant. ___________________________ Law Office of Brandon D. Ross, PLLC on THE SUPREME COURT OF NEW HAMPSHIRE

general, on the brief, and Lisa L. Wolford, attorney, orally), for the State.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as argument presents a question of constitutional law, which we review de p. 2 Constitution and the First Amendment of its federal counterpart. This

his right to free speech under Part I, Article 22 of the New Hampshire

The defendant first argues that his disorderly conduct conviction violates

of the latter.

conduct. The trial court found him not guilty of the former charge, but guilty charged him with obstructing government administration and disorderly having been told to do so several times, Garcia arrested him. The State

but the defendant did not do so. After the defendant refused to leave despite

defendant he needed to back away and stop interfering with the investigation, attorney, and whether he wanted the interaction recorded. Garcia told the conversation, asking the man whether he was okay, whether he wanted an

then approached to within an arm’s length of the group and interrupted their

Officer Kayla Buffis arrived and brought the woman outside. The defendant

could care for the child alone, Garcia saw the defendant leave the restaurant. After speaking with the man for a short time to determine whether he

meaning Garcia would need to take her into custody.

circumstances and in all places. See

dispatcher that there was an outstanding bench warrant for the woman, interruption from the defendant. While outside, Garcia learned from a and Garcia asked the man to step outside to discuss the matter without

speech, but they do not offer absolute protection to all speech under all

analysis. State v. Ball

defendant the purpose of his visit, the woman took the child to the bathroom

The State and Federal Constitutions contain robust guarantees of free

claims under the State Constitution, and rely on federal law only to aid in our State v. Marshall, 162 N.H. 657, 661 (2011). We first address the defendant’s

that “the police ruin peoples’ lives.” After Garcia attempted to explain to the defendant advised the couple not to talk to Garcia, stating, among other things, their child, but was interrupted by the defendant, who was sitting nearby. The

approached the couple to determine whether they were capable of caring for

in a McDonald’s restaurant were not attending to the needs of their child. He Concord Police Officer Garcia responded to a report that a man and a woman The trial court could have found the following facts. On June 28, 2011,

p. 3 We are not persuaded that RSA 644:2, II(e) is constitutionally deficient

applied to him; accordingly, we address each contention in turn. contend that RSA 644:2, II(e) is unconstitutional both on its face and as criminal investigation.” RSA 644:2, II(d) (2007). The defendant appears to

– “[e]ngaging in conduct in a public place which substantially interferes with a

which made his commission of another variant of disorderly conduct imminent

Here, the State contends that the defendant engaged in a course of conduct his commission of such an offense imminent.” RSA 644:2, V(a)(1) (2007). offense, or when said person is engaged in a course of conduct which makes

reasonable grounds to believe that said person is about to commit any such

committing any offense set forth in this section . . . when the officer has command issued to any person for the purpose of preventing said person from from any public place.” A “[l]awful order” under this statute means “[a]

to comply with a lawful order of a peace officer to move from or remain away inconvenience, annoyance or alarm . . . by . . . [d]isrupting the orderly conduct

Comley provides that a person is guilty of disorderly conduct if he “[k]nowingly refuses of disorderly conduct if he “purposely causes a breach of the peace, public RSA 644:2, II(e), the statute under which the defendant was convicted, bounds of the limited, content-neutral time, place and manner standard.

90. He was charged with the statutory variant declaring that a person is guilty remarks about the Seabrook nuclear power plant. Comley regulation, is constitutionally permissible if it does not exceed the, 130 N.H. at 689communication of the information.”). interrupted the inauguration ceremony of Governor John Sununu by shouting nonetheless may effect an incidental regulation of speech that, like direct conduct generally, without addressing speech in particular, it is instructive. The defendant in that case

governmental interest, and that they leave open ample alternative channels for and allow other opportunities for expression. Even where a law regulates

and manner of expressive activities taking place in a public forum. See

regulated speech, that they are narrowly tailored to serve a significant provided that they are justified without reference to the content of the are content-neutral, narrowly serve a significant governmental interest, 468 U.S. at 293 (Reasonable time, place, and manner restrictions “are valid may be subject to reasonable time, place and manner regulations that

same standard to assess the constitutionality of restrictions on the time, place, , 130 N.H. at 691 (citations omitted). Federal precedent employs the

(1988). The right of free speech under the State Constitution Non-Violence, 468 U.S. 288, 293 (1984); State v. Comley, 130 N.H. 688, 691 bystanders.” Colten v. Kentucky

p. 4 triggers none of the constitutional infirmities identified in Hill subject of the lawful order was engaged in expressive activity. This provision legitimate investigations “free from possible interference or interruption by believe a person is about to commit an offense, regardless of whether the

annoy or offend them,” id

The defendant relies upon Houston v. Hill State’s strong interest in safeguarding a police officer’s ability to pursue to “move from or remain away from” a public area when it is reasonable to investigation. interruptions” of police officers a crime. Id that the Constitution does not allow the government to make “verbal course of a criminal investigation. See imminently cause – a substantial interference in the officer’s duties during the

the police “unfettered discretion to arrest individuals for words or conduct that

“imminent.” RSA 644:2, V(a)(1). The statute is also narrowly tailored to the 644:2, II(e) criminalizes the refusal to comply with a police officer’s lawful order which a person is not interfering or about to interfere with a criminal offense, or (2) is engaged in a course of conduct that makes an offense. at 461, 463. In contrast, RSA objectively reasonable belief that the person either (1) is “about to” commit an 461 (quotation omitted). The Court struck down the provision on the grounds molest, abuse or interrupt any policeman in the execution of his duty.” Id. at The ordinance made it “unlawful for any person to . . . in any manner oppose, others in conversation at a time and in a manner that causes – or may portion . . . deal[t] not with core criminal conduct, but with speech.” Id. at 460. 451 (1987). Hill, however, addressed a city ordinance whose “enforceable “interrupting” the police may not be criminalized. See Houston v. Hill, 482 U.S.

the statute leaves open ample channels of expression; namely, situations in with an official command when that command is based upon an officer’s id.; see also RSA 644:2, II(d). Finally,

prosecution under [it] concerns conduct encompassing expressive activity.” Id and observe police conduct,” he has no parallel right to engage an officer or asserts in his brief, the defendant may have a constitutional right to “criticize

exercise, as distinct from its contents, interferes with the government’s interest

speech for its content, but rather aims only at persons who refuse to comply Its plain terms, however, satisfy Comley ’s three-part test. It does not target

although “its application obviously may have such an effect where a As in Comley, RSA 644:2, II(e) does not specifically regulate speech,

encompassing expressive activity,” it “prohibits only that speech whose regulating speech] where a prosecution under [it] concerns conduct challenge, reasoning that, although the statute “may have [the effect of omitted); see RSA 644:2, III(b) (2007). We rejected his State constitutional of business in any public or government facility.” p. 5 Id. at 691 (quotation Id

possible interference or interruption from bystanders” such as the defendant. goal of ensuring that the man was capable of caring for the child “free from Garcia was entitled, if not obligated, under the circumstances, to pursue the

refused Garcia’s lawful command aimed at preventing further interference.

performance of Garcia’s duties as a law enforcement officer and subsequently Garcia to arrest him. Rather, it was the fact that he was interfering with the man. It was not the content of the defendant’s speech that caused Officer

Garcia outside the restaurant and attempted to engage in a discussion with the

inside the restaurant, the defendant approached to within “arm’s distance” of After having first interrupted the conversation between Garcia and the couple conduct when he refused to leave the vicinity of Officer Garcia’s investigation.

applied to the defendant. . Thus, we perceive no basis for finding RSA 644:2, II(e) unconstitutional as Here, too, the defendant was not engaged in constitutionally-protected

issuing officer in conversation at that time.” p. 5 Id constitutional right to observe the issuance of a traffic ticket or to engage the Colten Amendment challenge on the grounds that the defendant “had no Neither is the statute unconstitutional as applied to the defendant. In

and place). Therefore, it survives facial scrutiny. asked by the police at least three times to move along. p. 5 Id particular public interest in preventing that expression or conduct at that time

comply with an officer’s command to leave the scene of a traffic stop. p. 5 Id

(quotation omitted). The Court rejected the defendant’s as-applied First intent to cause public inconvenience, annoyance or alarm.” p. 5 Id. at 108 refuse[] to comply with a lawful order of the police to disperse” if done “with made it unlawful to “[c]ongregate[] with other persons in a public place and

transportation for the driver of a vehicle that was to be towed away, and was the individual’s interest in expression . . . is ‘miniscule’ compared to a 106-07. The defendant maintained that he had been attempting to arrange

engaging in unlawful conduct. Cf defendant was arrested and charged with disorderly conduct after refusing to content-neutral goal of allowing police officials to disperse those on the brink of circumstances analogous to those of this case. p. 5 Id. at 109. In that case, the , the Supreme Court upheld the application of a similar statute in

disorderly conduct statute in part because it “comes into operation only when

n.11. RSA 644:2, II(e) is similarly tailored to advance only the legitimate, conversation while the officer directed traffic at a busy intersection. p. 5 Id. at 463 were applied to a person who persistently engaged a police officer in disperse in response to a valid police order” would be constitutional, even if it in Hill noted that “a disorderly conduct statute that makes it unlawful to fail to verbally to oppose or challenge police action,” id. at 462-63. Indeed, the Court command to the defendant to leave the area was a lawful order and the

p. 6 interference imminent, RSA 644:2, V(a)(1). Accordingly, Officer Garcia’s

concluded that the defendant’s “course of conduct” made a substantial officers’ investigation, RSA 644:2, II(d), a rational trier of fact could have on its own, establish that the defendant “substantially interfere[d]” with the

was capable of caring for the child. Even assuming that this evidence did not,

restaurant and interrupted Garcia’s attempt to ascertain whether the father people’s lives,” but he also came within “arm’s distance” of Garcia outside the expressed his opinion to the father inside the restaurant that “the police ruin

his inquiry into the safety of the child. Not only had the defendant already

himself into their investigation and interfere with Garcia’s efforts to complete to voice his concern to the man about speaking with police, but to inject defendant’s conduct outside the restaurant demonstrated a design not simply

conviction. As is clear from the testimony of Officers Garcia and Buffis, the

The evidence presented is sufficient to sustain the defendant’s

accordingly no rational trier of fact could have convicted him on this basis. offered no evidence Garcia was performing a criminal investigation, and

RSA 644:2, II(d). The defendant, on the other hand, argues that the State

in a public place which substantially interferes with a criminal investigation.” commission of another variant of disorderly conduct: “[e]ngag[ing] in conduct defendant was engaged in a course of conduct that made imminent his

State argues that Officer Garcia had reasonable grounds to believe the

makes his commission of such an offense imminent.” RSA 644:2, V(a)(1). The any such offense, or when said person is engaged in a course of conduct which officer has reasonable grounds to believe that said person is about to commit

said person from committing any offense set forth in this section . . . when the

guilt beyond a reasonable doubt. State v. Wilmot inferences from it in the light most favorable to the State, could have found prove that no rational trier of fact, viewing all of the evidence and all reasonable

statute means “[a] command issued to any person for the purpose of preventing

him of disorderly conduct under the statute. To prevail, the defendant must

move from or remain away from any public place.” A “[l]awful order” under this if he “[k]nowingly refuses to comply with a lawful order of a peace officer to As noted, a person is guilty of disorderly conduct under RSA 644:2, II(e)

The defendant next argues that the evidence was insufficient to convict

protection than the State Constitution in these circumstances, see

federal analysis. N.H. at 692; Colten, 407 U.S. at 111, we reach the same conclusion under a

Because the Federal Constitution offers the defendant no greater see

p. 7 Finally, the defendant invokes the plain error rule as a basis for reversal,

parties’ arguments as to other statutory variants of the crime. based upon his refusal to comply with a lawful order, we need not address the Because we sustain the defendant’s conviction for disorderly conduct

the defendant. Ortiz

criminal investigation.

is the controlling law “settled” against the trial court’s decision as applied to

so. Colten understand” that he could be convicted for failing to move on when told to do

rational trier of fact could have concluded that the officers were conducting a arrest – a fact of obviously criminal import. Under these circumstances, a dispatcher that the mother of the child had an outstanding warrant for her

applications of the current statute might pose vagueness concerns, in no sense ascertain whether the child’s caretaker is endangering the child’s welfare, see the sense that the governing law was clearly settled to the contrary. State v., 407 U.S. at 110. Even assuming that certain hypothetical welfare, the nature of such an investigation will often call upon the police to follow up on a telephone call reporting a general concern about a child’s person seeking “to engage the attention of an officer issuing a summons should Court in Colten rejected a similar vagueness argument, reasoning that any “[l]awful order.” RSA 644:2, V(a). Furthermore, the United States Supreme 2005, 192:2, such that it now includes a specific three-part definition of himself into the investigation outside, Officer Garcia had learned from a legislature subsequently amended the statute, see Laws 1983, 200:1; Laws . . . situations,” Nickerson, 120 N.H. 821, 824 (1980) (quotation omitted), the it was “set in general terms and can conceivably apply to a broad spectrum of previous version of the disorderly conduct statute was unconstitutional where Ortiz, 162 N.H. 585, 591 (2011). Although in State v. Nickerson we held that a

rule, however, an error is plain only if it was or should have been obvious in due process violation as applied to him. For the purposes of the plain error underway. While it is true that Officer Garcia initially went to the restaurant to an assertion that the definition of “lawful order” is so vague as to constitute a Sup. Ct. R. 16-A, an argument that appears to rest, at least in part, upon

suggesting a caretaking issue. Moreover, by the time the defendant injected traveled road pushing a baby carriage with apparent disregard for traffic, testified that he had previously observed the same parents cross a heavily-

insufficient evidence that a “criminal investigation,” RSA 644:2, II(d), was Nor are we persuaded by the defendant’s argument that the State offered

RSA 639:3 (2007), or otherwise harming the child. Indeed, Officer Garcia

II(e). defendant’s refusal to comply constituted disorderly conduct under RSA 644:2, p. 8 8

Affirmed

See the plain error doctrine, they are insufficiently developed for appellate review.

DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.

Sabinson v. Trustees of Dartmouth College, 160 N.H. 452, 459 (2010).

To the extent that the defendant advances other bases for relief under