Before Steadman and Reid, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Mack, Senior Judge
Appeal from the Superior Court of the District of Columbia (Hon. Robert I. Richter, Trial Judge)
Dissenting opinion by Associate Judge Steadman
Appellant, W.H.L., was adjudicated delinquent after being found guilty of disorderly conduct under circumstances likely to cause a breach of the peace, D.C. Code § 22-1121 (1995 Repl.). W.H.L. appeals, contending the evidence was insufficient to find him guilty. On the circumstances of this case, we agree and reverse.
The only evidence presented was the testimony of Metropolitan Police Department Officer Durriyyah Habeebullah. Officer Habeebullah testified that on October 6, 1997, she received a call that there had been a shooting in the commercial area of the 2900 block of Martin Luther King Boulevard, Southeast. She and about five or six other police officers responded to the call. When the police could not find a victim, the dispatcher gave them a look-out description of a suspected shooter. The police lined up five to six suspects against a wall, asked for identification, and began to determine if any of the suspects were wanted.
While the suspects were being patted down, W.H.L., then fourteen years old, began to ride his bicycle behind the officers. W.H.L. spoke in a loud voice to the officers, "Y'all petty as s___. F___ y'all." He did this two to three times, ignoring the advice of the officers to move on. At this time, there may have been some people who were across the street from the officers paying attention to what the officers, who had arrived in four or five scout cars, were doing. Officer Habeebullah clearly testified, however, that a crowd had not then gathered.
When W.H.L. reappeared on the scene after going into a store, he left his bicycle and entered a carry-out restaurant next to the area where the officers were holding the suspects against the wall. When W.H.L. came out of the restaurant, Officer Habeebullah asked if his bicycle was registered. W.H.L. responded that it was not. The officer then attempted to check the serial numbers of the bicycle; when she grabbed for the bicycle, W.H.L. began to yell, "Y'all can't take my bike. F___ y'all." Officer Habeebullah testified that W.H.L. yelled this five or six times. It was only after the officer attempted to grab the bicycle that a crowd of ten to fifteen people started to gather. The people in the crowd urged W.H.L. to let Officer Habeebullah see the bicycle.
On cross-examination, Officer Habeebullah testified that she then seized the bicycle, filled out forms, and broadcast that she was transporting one juvenile to the Traffic Division. She testified that although she had not received a report of a stolen bike or complaint about a registered bike, she had seen somebody else riding the same bicycle the day before. She admitted that she had decided to arrest him before she approached him because he did not move on, and that he did not threaten her or touch her, and that none of the late-coming on-lookers had threatened her, but had in fact urged W.H.L. to cooperate peacefully.
After hearing this testimony, the trial court found W.H.L. guilty of disorderly conduct. The court concluded that after making what might have been legitimate comments initially, W.H.L. crossed the line. Specifically, the trial court concluded that a crowd had gathered in response to boisterous profane comments directed at the police.
A person may be found guilty of disorderly conduct when that person, "with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby . . . [a]cts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others . . . ." D.C. Code § 22-1121 (1996 Repl.). One circumstance where a breach of the peace may be occasioned is where the defendant uses ...