Com. v. Ferro

• Decision Date: 13 April 1977
• Citation: 361 N.E.2d 1234,372 Mass. 379
• Parties: , 2 Media L. Rep. 2163 COMMONWEALTH v. Charles FERRO, Jr. Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1234

361 N.E.2d 1234

372 Mass. 379, 2 Media L. Rep. 2163

COMMONWEALTH v. Charles FERRO, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 3, 1976.

Decided April 13, 1977.

Louis A. Guidry, Arlington, for defendant.

Kevin F. O'Donnell, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

HENNESSEY, Chief Justice.

The defendant was convicted in August, 1974, on a complaint charging possession of six obscene magazines with intent to disseminate them in violation of G.L. c. 272, § 29. He appealed for a trial de novo in the Superior Court and was tried by a jury who returned a verdict of guilty in April, 1975. The judge fined him and sentenced him to two and one-half years in a house of correction. The defendant then claimed an appeal to this court pursuant to G.L. c. 278, §§ 33A--33H.

In July, 1974, a Boston police sergeant, observing certain publications he considered obscene in the defendant's bookstore, arrested the defendant for violation of G.L. c. 272, § 29. It is clear that these publications had not been the subjects of in rem proceedings under G.L. c. 272, §§ 28C--28H, prior to the institution of the instant proceedings. Before trial in the Superior Court the defendant filed two motions to dismiss on the grounds that G.L. c. 272, §§ 28C--32, are unconstitutionally vague; that G.L. c. 272, §§ 28C--32, deprive the defendant of equal protection of the law; and that the condition precedent to § 29 proceedings set forth in G.L. c. 272, § 28I, had not been met. The judge denied both motions to dismiss and exceptions were taken to these denials. The judge later (and, we conclude, incorrectly) submitted to the jury the issues raised by the motions to dismiss.

At trial, the arresting officer testified that he had placed the defendant 'under arrest a couple of occasions.' The judge immediately instructed the jury to disregard this statement and denied a defense motion for a mistrial. In addition, the prosecution's witness repeatedly referred to the publications in evidence as 'magazines.' The defendant objected to this opinion evidence. ¹ The defendant also moved for a directed verdict on the grounds that the Commonwealth had failed to prove that he knowingly possessed obscene magazines and that the weight of the evidence did not support a finding of guilt. The judge denied this motion and a later defense motion (after verdict) for a judgment of not guilty. On this appeal, the defendant does not argue the directed verdict issue, and we treat it as waived. ²

The defendant in his appeal attacks the constitutionality of the statutory scheme set forth in G.L. c. 272, §§ 28C--32. He also asserts that error in the admission of evidence before the jury necessitates reversal of his conviction. We find none of these arguments persuasive. However, we conclude that the defendant's further argument relating to the denial of his motions to dismiss for failure to fulfil the condition of G.L. c. 272, § 28I, requires that the case be remanded to the Superior Court for further proceedings.

1. The defendant maintains that the obscenity statutes, G.L. c. 272, §§ 28C--32, are unconstitutionally vague in their proscription of dissemination of obscene matter, and that they violate the equal protection provisions of the Massachusetts and United States Constitutions in their different procedural treatment of 'books' and other matter. We have already examined these issues. We have held that the obscenity statutes give constitutionally adequate notice of proscribed conduct and that their distinction between books and other matter is constitutionally permissible. COMMONWEALTH V. 707 MAIN CORP., --- MASS. ---, 357 N.E.2D 753 (1976)^A. We add the following considerations. Keeping in mind that we have emphasized 'periodicity' as a characteristic of magazines (Commonwealth v. Zone Book, Inc., --- Mass. ---, --- - ---, ^b 361 N.E.2d 1239, decided today) a possible rational basis for the statutory distinction between books and magazines may be inferred. The Legislature may well have reasoned that when a publication comes out in issues or numbers over time, and especially if the intervals are uniform and the source revealed, a retailer may be expected to be on notice of its continuing quality. In some circumstances he may then fairly be charged with knowledge of the probable content of any particular issue on his shelves even if he has not read it. It is possible from this reasoning that the Legislature felt justified in establishing differences in treatment between 'books' and other matter, especially magazines, in respect to requiring prior civil proceedings.

Further, the defendant asserts that the distinction made in G.L. c. 272, § 29, as appearing in St.1974, c. 430, § 9, between a 'bona fide school, museum or . . . (anyone) acting in the course of his employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization' and other disseminators of obscene matter violates the equal protection provisions of the Massachusetts Constitution and the United States Constitution. Section 29 makes proof of such status an affirmative defense to § 29 prosecutions. This classification of disseminators does not affect the statutory definition of obscenity and thereby involve a potential infringement of First Amendment protected expression. Contrast Jenkins v. Georgia, 418 U.S. 153, 160, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). Nor does this classification affect the ability of a defendant to litigate the line drawn between obscenity and protected expression. Contrast McKinney v. Alabama, 424 U.S. 669, 673, 96 S.Ct. 1189, 47 L.Ed.2d 387 (1976). Therefore, we need not conduct an independent review of this constitutional claim as we must when First Amendment values are implicated, Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), but instead we examine the statutory classification at issue to see whether it has any rational basis. Commonwealth v. 707 Main Corp., --- Mass. ---, ---, ---, ^c 357 N.E.2d 753 (1976). See Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 541--542, 320 N.E.2d 911 (1974).

The Legislature exempted educational organizations and their affiliates from criminal sanctions for dissemination of obscene materials, leaving criminal sanctions available for punishment of commercial disseminators of obscene materials. This decision may reflect a policy of protecting educational resources from use in obscenity litigation rather than social service while still proceeding to eliminate public availability of obscene matter. The Legislature may proceed one step at a time, addressing first problems it perceives to be most pressing. Mobile Oil Corp. v. Attorney Gen., 361 Mass. 401, 417, 280 N.E.2d 460 (1972). Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110, 69 S.Ct. 463, 93 L.Ed. 533 (1949). Thus this classification, like the classification of materials into 'books' and other matter, may have a rational basis and does not violate the equal protection provisions of the Massachusetts Constitution or the United States Constitution. See Commonwealth v. 707 Main Corp., --- Mass. ---, ---, ^d 357 N.E.2d 753 (1976).

In addition, the defendant contends that the statutory scheme is vague as applied to his case in so far as it fails to define 'books' and therefore failed to inform him whether the matter he possessed constituted 'books' or other matter. The appropriate classification of this matter, however, relates to the procedures statutorily provided for adjudication of its obscenity, not to the defendant's notice of potential liability for dissemination thereof. Such ambiguity does not render the statutory scheme unconstitutionally vague. See Miller v. California, 413 U.S. 15, 27--28 n. 10, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). At most the statutory failure to define 'books' left the defendant uninformed of his right to contest prosecutorial failure to follow G.L. c. 272, §§ 28C--28H, procedures in a motion to dismiss. See G.L. c. 272, § 28I. Given our clarification of the statutory definition of books, Commonwealth v. Zone Book, Inc., --- Mass. at --- - ---, ^e 361 N.E.2d 1239, and our disposition of this case, such statutory ambiguity in no way prejudices this defendant.

2. The defendant claims that the various trial references to the 'magazines' he possessed constituted prejudicial error which swayed the jury's decision on the proper classification of these publications and which requires reversal of his conviction. We find that these references, by a witness and by one of the publications at issue, even if erroneous, did not prejudice the defendant. As we explain below, the appropriate classification of materials as 'books' or other matter for procedural purposes is a question to be decided by the judge, not by the jury. The jury decide only if the publication at issue is obscene, not if it is a book. See G.L. c. 272, §§ 28I, 29, 30, and discussion at ---, ^f 361 N.E.2d 1239. Therefore, references to the publications herein involved as 'magazines' were immaterial, but did no harm to the defendant because these references did not relate to the question of the publication's obscenity.

The defendant also argues that his motion for a mistrial should have been allowed because the statement at trial concerning his previous arrests was incurable. The defendant concedes that the judge gave a prompt and forceful instruction to the jury to disregard this statement. In these circumstances the instructions sufficiently protected the defendant so that a mistrial was unnecessary. See Commonwealth v. Gibson, 357 Mass. 45, 49, 255 N.E.2d 742 (1970). We conclude that the motion for a mistrial was properly denied.

3. Finally, we turn to the defendant's contention that his motions to dismiss should have been allowed because the publications he possessed...