Com. v. Mascolo

• Decision Date: 25 April 1978
• Parties: COMMONWEALTH v. Anthony C. MASCOLO (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 17

375 N.E.2d 17

6 Mass.App.Ct. 266

COMMONWEALTH v. Anthony C. MASCOLO (and a companion case ¹).

Appeals Court of Massachusetts, Suffolk.

Argued Jan. 9, 1978.

Decided April 25, 1978.

Morris M. Goldings, Boston (Kenneth H. Tatarian, Boston, with him), for defendants.

Timothy P. O'Neill, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and KEVILLE and BROWN, JJ.

KEVILLE, Justice.

This is an appeal by Anthony C. Mascolo (Mascolo) and the United American Theatre Corporation (corporation), from convictions under G.L. c. 272, § 29, for possession of an obscene motion picture film with intent to disseminate. The defendants were found guilty in the Municipal Court of the City of Boston. Mascolo was fined $2,500 and the corporation $2,500. The defendants appealed to the Superior Court for a trial de novo where they were found guilty by a jury. Mascolo was sentenced to one year in a house of correction and the corporation was fined $5,000. The defendants have appealed under G.L. c. 278, §§ 33A-33G. The jury could have found the following:

On March 29, 1976, two police detectives viewed the allegedly obscene film at the Pussycat Cinema. They paid the required admission fee at the box office to the defendant Mascolo. One of the detectives took notes throughout the movie. During the movie one of the detectives noticed Mascolo walk down an aisle to the front of the theatre to adjust a thermostat. Following their viewing of the entire film, which lasted for approximately eighty minutes, they prepared an affidavit in support of a request for a warrant. The affidavit included a statement which depicted each scene of the film in detail.

The warrant was issued; and on March 30 the detectives returned to the theatre where the same film was being exhibited. While in the presence of his attorney, Mascolo stated, "I am the entire business. I am the sole corporator (sic ). It is a one man business." The detectives seized the film and certain business records. Mascolo signed a receipt for the items seized as "manager and owner." The detectives obtained additional business records from public files and through a subpoena duces tecum. The sole witness at trial was the detective who had taken notes during the movie and had executed the affidavit in support of the warrant. The film was exhibited to the jurors. Further facts will be stated as necessary in the discussion of the issues.

Contrary to the defendants' assertion, there was no error in the denial of motions to suppress certain evidence seized pursuant to the warrant which issued without the issuing magistrate's having viewed the film. In support of their contention the defendants assert that the warrant issued without an independent determination by the issuing official, without probable cause, and that the scope of the warrant was so sweeping as to constitute a "general warrant." It has been concluded in several decisions that there is no requirement that a magistrate view an allegedly obscene film prior to the issuance of a warrant for its seizure. United States v. Sherpix, Inc., 168 U.S.App.D.C. 121, 128-129, 512 F.2d 1361, 1368-1369 (1975); United States v. Marks, 520 F.2d 913, 917 (6th Cir. 1975), rev'd on other grounds, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); United States v. Christian, 549 F.2d 1369, 1371 (10th Cir.), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977). ²

In each of the cases just cited the issuing magistrate had not viewed the film but based his decision upon affidavits which had depicted its content in detail. The descriptions in those cases and in the instant case as well were sufficiently detailed to allow the issuing official to focus searchingly on the question of obscenity. Ibid. Compare Marcus v. Search Warrant of Property at 104 E. 10th St., 367 U.S. 717, 731-732, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). Moreover, the affidavit in the instant case established a sufficient basis for the issuing judge to make a determination of probable cause for the issuance of the warrant. Commonwealth v. State Amusement Corp., 356 Mass. 715, 248 N.E.2d 497 (1969); United States v. Christian, 549 F.2d at 1371. Such an affidavit is to be viewed in a "common sense and realistic fashion." Commonwealth v. Cuddy, 353 Mass. 305, 308, 231 N.E.2d 368 (1967).

Nor do we find merit in the defendants' assertion that the warrant was drawn in such vague terms that it constituted an impermissible "general warrant." ³ Contrast Stanford v. Texas, 379 U.S. 476, 480-485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965) (conviction set aside upon evidence seized under a warrant inadequately describing the things to be seized in violation of the Fourth Amendment). We think that the validity of the warrant in the instant case is supported by the holding in Andresen v. Maryland, 427 U.S. 463, 480-481 n. 10, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). In Andresen, the Court held that otherwise general language in a warrant was adequately specific where it related to evidence of a specific crime. That Court also noted, inter alia, that in search of evidence, some irrelevant documents must be examined. Ibid. In the instant case the warrant was limited to evidence relating to the dissemination of the specific film. Moreover, documents showing purchase, ownership or other connection with the film were probative of knowledge on the part of Mascolo and the corporation required for a conviction under § 29. Commonwealth v. Thureson, --- Mass. ---, --- ^a, 357 N.E.2d 750 (1976). We note that the defendants identified no document seized by the detectives in executing the warrant which did not relate to the crime charged. The understanding of a warrant by executing officers, as reflected in the types and numbers of items actually seized, is one indication whether the warrant adequately specified the goods to be seized. See Stanford, 379 U.S. at 485, 85 S.Ct. 506; Andresen, 427 U.S. at 493, 96 S.Ct. 2737 (Brennan, J., dissenting); Commonwealth v. Jacobs, 346 Mass. 300, 309, 191 N.E.2d 873 (1963). In the instant case the executing officers apparently understood the limitations imposed by the warrant. ⁴

The defendants challenge the jury selection procedure on two grounds. They claim that there was error in the denial of their motion for a statewide venire and that the judge's examination of prospective jurors was inadequate. They argue that only a jury drawn from a statewide venire can discern and apply contemporary standards of the Commonwealth as required by G.L. c. 272, §§ 29 and 31. They assert that a jury drawn from a single county does not satisfy this requirement. However, there is no showing on the record before us that a jury drawn from a statewide venire would be more likely to perceive and to apply the contemporary standards of the Commonwealth as measured by the views of an average citizen than would a jury drawn from a single county. ⁵

As to the defendants' second objection, the record shows that the judge carefully and adequately questioned prospective jurors concerning their possible bias or prejudice and that there was no abuse of discretion in denying the defendants' motion to permit defense counsel to question prospective jurors directly. Commonwealth v. Walker, 370 Mass. ---, --- ^b, 350 N.E.2d 678 (1976), and cases cited. A judge has broad discretion in determining the extent of the inquiry to be made of prospective jurors. Commonwealth v. Pinckney, 365 Mass. 70, 73, 309 N.E.2d 495 (1974). Commonwealth v. Harrison, 368 Mass. 366, 371, 331 N.E.2d 873 (1975). ^c Here the judge carefully explained the subject matter to the jurors individually and inquired of each of them whether they could arrive at a fair, impartial decision. See Commonwealth v. Fleurant, --- Mass.App. ---, --- ^d, 372 N.E.2d 542 (1978). Additionally, he inquired of the jurors whether they were acquainted with the attorneys for either party. See G.L. c. 234, § 28.

The defendants challenge the validity and applicability of G.L. c. 272, § 29, claiming that § 29 does not proscribe the conduct charged against them. There is no merit in the defendants' contention that §§ 29 and 30 are unconstitutionally overbroad or vague. Commonwealth v. 707 Main Corp., --- Mass. ---, --- - --- ^e, 357 N.E.2d 753 (1976). Commonwealth v. Trainor, --- Mass. ---, --- - --- ^f, 374 N.E.2d 1216 (1978). Relying upon Commonwealth v. Balthazar, 366 Mass. 298, 318 N.E.2d 478 (1974), they assert that § 29 is inapplicable to private consensual conduct of adults. This argument is unpersuasive. The court in Balthazar held that G.L. c. 272, § 35, punishing unnatural and lascivious acts, was not applicable to private consensual conduct between adults. Id. at 302, 318 N.E.2d 478. That determination was based upon the emergent articulation of the constitutional right of an individual to be free from government regulation of certain sex related activities and upon the court's own awareness of changes in community values with respect to permissible sexual conduct. Ibid. Those considerations are inapplicable to the facts presented on this appeal. The Supreme Court has determined that commercial display of pornographic films in public theatres is not protected by a constitutional right to privacy. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57-58, 65-66, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). But see Commonwealth v. Trainor, --- Mass. at --- n. 6, 374 N.E.2d 1224 (Abrams, J., dissenting). ^g Moreover, a violation of § 29 does not depend upon an appellate court's awareness of changing community standards of permissible sexual conduct. The Legislature has placed the responsibility for determining and applying "contemporary standards of the Commonwealth" (G.L. c. 272, § 31, as appearing in St.1974, c. 430, § 12) in the hands of the jury. The court's role is limited to a determination whether, as matter of law, there was sufficient evidence upon which the jury could find a violation of § 29.

The defendants characterize...