Com. v. Dane Entertainment Services, Inc.

• Decision Date: 03 August 1984
• Citation: 467 N.E.2d 222,18 Mass.App.Ct. 446
• Parties: COMMONWEALTH v. DANE ENTERTAINMENT SERVICES, INC.
• Court: Appeals Court of Massachusetts

Page 222

467 N.E.2d 222

18 Mass.App.Ct. 446

COMMONWEALTH v. DANE ENTERTAINMENT SERVICES, INC.

Appeals Court of Massachusetts Suffolk.

Argued May 11, 1984.

Decided Aug. 3, 1984.

Lee Carl Bromberg, Boston (Benjamin J. Naitove, Boston, with him), for defendant.

Paul J. McCallum, Asst. Dist. Atty., for the Commonwealth.

Before BROWN, CUTTER and KASS, JJ.

KASS, Justice.

Dane Entertainment Services, Inc. (Dane), was convicted by a jury of six of disseminating an obscene film, "Small Town Girls," in violation of G.L. c. 272, § 29, as appearing in St.1974, c. 430, § 9, and fined $5,000. The defendant contends that the trial judge should have disqualified himself because of his personal bias against the defendant and that the alleged bias infected the trial. The defendant also challenges certain evidentiary rulings, the charge to the jury, the judge's denial of a motion to suppress, and the constitutionality of G.L. c. 272, §§ 29 and 31.

1. The judge's failure to disqualify himself. The defendant asserts that the trial judge should have disqualified himself sua sponte because of statements the judge had made a year earlier when he found Dane guilty (at a bench trial) of disseminating two other obscene films. At the time the judge made those previous statements, complaints stemming from the dissemination of additional obscene films, including the instant charge relating to "Small Town Girls," were pending before the judge in Chelsea District Court. In one of those statements, all of which were reported in the press, the judge expressed frustration over the necessity of holding a separate trial as to each movie which was the subject of a complaint. As reported in the Chelsea Record newspaper on September 17, 1981, the judge had stated, "It's an ongoing thing. I feel it should be stopped. It just wastes the court (sic ) time to try film one, two, three, four and five and the corporation goes on making a lot of money." On October 7, 1981, ¹ the Chelsea Record reported that in finding the defendant guilty on two charges of disseminating obscene films, the judge characterized the films as "pure filth" and a "sick portrayal of sex," ordered them "burned in the garbage can where they belong," and stated, "I regret that I have no power to close the theatre down."

Prior to presiding at the trial in the instant case, the judge on his own motion noted that a year earlier he had heard similar charges against the defendant. ² A court clerk remarked, "You cannot sit on this case, Judge." The judge considered the question over the Thanksgiving weekend and the following Monday he indicated that he would go forward with the trial, since the earlier proceeding involved different films. While defense counsel "expressed concern" about the judge's possible bias, he did not ask the judge to recuse himself.

Not until after the trial did the challenged statements come to defense counsel's attention, and he raised the matter in a motion for a new trial. That belated discovery could scarcely be considered as new matter bearing on the recusal issue. The judge's comments had been widely published, could scarcely have escaped the notice of the defendant, and were, thus, available to the defendant's lawyer. Cf. Commonwealth v. Brown, 378 Mass. 165, 170, 390 N.E.2d 1107 (1979); Commonwealth v. Markham, 10 Mass.App.Ct. 651, 653, 411 N.E.2d 494 (1980). In view of the failure of the defendant to move for the judge's recusal at or prior to trial, we could decline to consider the disqualification issue, Commonwealth v. Davis, 13 Mass.App.Ct. 179, 187, 431 N.E.2d 251 (1982), but because of institutional considerations, i.e., the integrity of the courts, we consider the question on a "substantial risk of miscarriage of justice" standard, Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967). What the defendant draws from the judge's 1981 statements is that the judge believed the defendant guilty of the charges then pending, including the one relating to "Small Town Girls," and that the judge was obliged to disqualify himself.

Article 29 of the Massachusetts Declaration of Rights requires that judges be "as free, impartial and independent as the lot of humanity will admit." Commonwealth v. Leventhal, 364 Mass. 718, 721, 307 N.E.2d 839 (1974). Commonwealth v. Campbell, 5 Mass.App.Ct. 571, 586, 366 N.E.2d 44 (1977). See Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 746 (1973). Under the authority of S.J.C.Rule 3:09, Canon 3(C)(1), 382 Mass. 811 (1981), "[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party ...."

Ordinarily, the question of disqualification is left to the discretion of the trial judge. Commonwealth v. Coyne, 372 Mass. 599, 602, 363 N.E.2d 256 (1977). Commonwealth v. Gogan, 389 Mass. 255, 259, 449 N.E.2d 365 (1983). That a judge presided in a previous criminal trial involving the same defendant is generally not a ground for disqualification. Commonwealth v. Campbell, 5 Mass.App.Ct. at 587, 366 N.E.2d 44, and cases cited. Ratner, Disqualification of Judges for Prior Judicial Actions, 3 How.L.J. 228, 245 (1957). When a judge is faced with a question as to his impartiality, he must "consult first his own emotions and conscience. If he pass[es] the internal test of freedom from disabling prejudice, he must next attempt an objective appraisal of whether this [is] 'a proceeding in which his impartiality might reasonably be questioned.' " Lena v. Commonwealth, 369 Mass. 571, 575, 340 N.E.2d 884 (1976), citing former S.J.C. Rule 3:25, Canon 3(C)(1)(a), 359 Mass. 842 (1972) (now Rule 3:09, Canon 3[C][a].)

In the instant case, the judge explained to the parties that he based his decision to proceed on the ground that the charges he had heard in Chelsea involved two other films. The judge's decision to preside at the trial revealed that he was inwardly satisfied that there was no danger of prejudice. King v. Grace, 293 Mass. 244, 247, 200 N.E. 346 (1936). Commonwealth v. Gogan, 389 Mass. at 259-260, 449 N.E.2d 365. Commonwealth v. Campbell, 5 Mass.App.Ct. at 587, 366 N.E.2d 44. Turning to the question whether there was the outward appearance of impartiality, we first examine those remarks quoted in the September 17, 1981, Chelsea Record in which the judge said, "I feel it should be stopped." We do not draw from that comment the conclusion which the defendant does: that it manifests the judge's belief that the defendant was guilty of the charges yet to be tried, including the instant charge relating to "Small Town Girls." Rather, the statement, taken in context, suggests that the judge objected to the prosecution of each film on an individual basis. With regard to those remarks made by the judge at the disposition phase of the earlier trial and quoted in the October 7, 1981, Chelsea Record, the judge acquired his opinion of the films in his judicial role and not from an extrajudicial source. This factor weighs heavily in favor of the judge's decision not to disqualify himself. Commonwealth v. Leventhal, 364 Mass. at 722, 307 N.E.2d 839. Lena v. Commonwealth, 369 Mass. at 574-575, 340 N.E.2d 884. Commonwealth v. Gogan, 389 Mass. at 259, 449 N.E.2d 365.

This case presents another instance in which a judge's effusions at the disposition phase of one trial have reverberated in an unrelated proceeding. See, e.g., Commonwealth v. Hanscomb, 367 Mass. 726, 328 N.E.2d 880 (1975); Lena v. Commonwealth, supra, 369 Mass. at 573, 340 N.E.2d 884. It is evident that a year before the instant trial the judge felt strongly about the two films which he had then found to be obscene, but it is equally evident that, in terms of his usefulness in later cases, it would have been better had he not given voice to his sentiments, for that is all they were. On balance, however, we are of opinion that the tests of inward and outward propriety were met. The inward test, as we have observed, is largely up to the trial judge. As to the outward test, it cannot easily be argued that the appearance of bias was obvious when defense counsel took no discernible notice of it. It is also significant that the judge was not the trier of fact in the instant case. Commonwealth v. Gogan, 389 Mass. at 260, 449 N.E.2d 365.

Review of the record does not support the defendant's claim that the trial was contaminated with bias. Compare Commonwealth v. Gogan, supra, at 260, 449 N.E.2d 365. There was no hint of unfairness in the judge's opening comment to prospective jurors that this case "has to do with obscenity." The judge's other statement during empanelment challenged by the defendant was to the effect that he did not want a lone female to sit on the jury because "something might happen." This remark, while inappropriate, did not, as the defendant contends, bespeak the judge's predetermined belief in the defendant's guilt. Without enumerating every challenged statement or ruling by the trial judge with respect to the testimony of the defendant's expert, we do not think that the judge's conduct toward the witness displayed partiality to the jury.

2. Restriction of the expert's testimony as to the literary value of the film. The defendant sought to qualify Charles White, an English professor at Southeastern Massachusetts University who has taught a film studies course since 1970, as an expert on both the literary and artistic values of "Small Town Girls." White testified during a voir dire that he received his doctoral degree in English from Harvard University in 1967 and that he has taught courses in literature at various universities for approximately the last twenty years. He educated himself about films by viewing hundreds of them, by reading the current film-related literature, and by teaching his course on film studies. He also wrote reviews of films for the...