Com. v. Dane Entertainment Services, Inc.

• Decision Date: 02 November 1983
• Citation: 454 N.E.2d 917,16 Mass.App.Ct. 991
• Parties: COMMONWEALTH v. DANE ENTERTAINMENT SERVICES, INC.
• Court: Appeals Court of Massachusetts

Page 917

454 N.E.2d 917

16 Mass.App.Ct. 991

COMMONWEALTH v. DANE ENTERTAINMENT SERVICES, INC.

Appeals Court of Massachusetts,

Suffolk.

Argued May 16, 1983.

Decided Sept. 23, 1983.

Further Appellate Review Denied

Nov. 2, 1983.

Lee Carl Bromberg, Boston, for defendant.

Patrick J. Roache, Jr., Asst. Dist. Atty., for the Commonwealth.

Before BROWN, PERRETTA and KASS, JJ.

RESCRIPT.

1. Essential terms used in G.L. c. 272, § 31, as amended by St.1977, c. 917, §§ 4-6 ("patently offensive," "prurient interest", and "contemporary standards of the Commonwealth"), are not inherently vague by reason of any increasing permissiveness which may exist in contemporary society. See Commonwealth v. United Books, Inc., 389 Mass. 888, 891-893, 453 N.E.2d 406 (1983); Commonwealth v. Dane Entertainment Serv., Inc., (No. 1), 389 Mass. 902, 904-906, 452 N.E.2d 1126 (1983).

2. The validity of the rule that the Commonwealth need not introduce evidence on the elements of obscenity but instead may rely on the allegedly obscene material itself to prove a statutory violation has been reaffirmed most recently in Commonwealth v. United Books, Inc., 389 Mass. at 893, 453 N.E.2d 406.

3. Suppression of the evidence seized under a warrant was not required by reason either of a violation of Federal copyright law or of the magistrate's failure to have viewed the film prior to issuing the warrant. Commonwealth v. Dane Entertainment Serv., Inc., (No. 1), 389 Mass. at 906-908, 452 N.E.2d 1126.

4. The defendant's argument concerning individual questioning of prospective jurors proceeds on the erroneous assumption that there is no distinction between forming opinions about general topics and being able to decide the facts in a particular case objectively. Dissemination of obscene films is not necessarily a subject that requires individual voir dire (Commonwealth v. Coast Vending Co., 12 Mass.App. 846, --- - ---, Mass.App.Ct.Adv.Sh. [1981] 2159, 2162-2163, 429 N.E.2d 381, Commonwealth v. Dane Entertainment Serv., Inc., 13 Mass.App. 931, 430 N.E.2d 1231 [1982] ) and there has been no showing on this record of an abuse of discretion by the trial judge. See Commonwealth v. Hobbs, 385 Mass. 863, 873, 434 N.E.2d 633 (1982).

5. On the issue of community standards, the context in which a dance is performed is distinguishable from the manner in which a film is distributed for the reasons discussed in Commonwealth v. Plank, 378 Mass. 465, 469, 392 N.E.2d 841 (1979), and we see no abuse of discretion by the trial judge in excluding testimony concerning the location and appearance of the theater.

6. Our review of the record shows that the defendant did not comply with Mass.R.Crim.P. 24(b), 378 Mass. 895-896 (1979). Although noncompliance may be excused where "[a]n error in explicating the correct principles of law or a failure to instruct the jury in this regard can readily lead to a miscarriage of justice," Commonwealth v. Deagle, 10 Mass.App. 748, 751, 412 N.E.2d 911 (1980), such is not the situation here. The trial judge, in his own words, covered most of the defendant's untimely proposed requests. Of the two which were omitted, one was unnecessary to an...