Com. v. Thureson

Decision Date23 November 1976
Citation371 Mass. 387,357 N.E.2d 750
Parties, 2 Media L. Rep. 1351 COMMONWEALTH v. Jacqueline A. THURESON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Charlotte Anne Perretta, Boston, for defendant.

Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., for the Commonwealth.

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

HENNESSEY, Chief Justice.

The defendant was found guilty by a jury in the Superior Court after trial on a complaint that she violated G.L. c. 272, § 29, which provides criminal penalties for the dissemination of any matter which is obscene, knowing it to be obscene. We conclude that the defendant's motion for a directed verdict should have been allowed because the evidence was not sufficient to warrant a finding beyond a reasonable doubt that the defendant had knowledge of the contents of the allegedly obscene matter.

In September, 1974, a Cambridge police officer entered a bookstore advertising peep shows, observed six machine booths in the back of the store, approached the defendant at the front of the store for change with which to operate the machines, and deposited a quarter in one machine which then showed a brief film depicting explicit sexual conduct. Returning the next day with a search warrant, the officer questioned the defendant. She told him she had 'a pretty good idea' what was in the machines but had never viewed them. When the defendant claimed she did not know for whom she worked, the officer arrested her. At trial, she testified that she had been hired two or three days before her arrest to act as cashier. In her few days of employment, she worked alone in the store and performed no tasks related to the peep show machines beyond making change. She had accepted this employment over the telephone from an acquaintance, because its flexible hours suited her needs as a mother. Although the defendant gave testimony on her understanding of 'adult movies,' no evidence introduced indicated that she had ever viewed the contents of the peep show machines. The trial judge denied her motion for a directed verdict for insufficient evidence on knowledge. He also denied her motion to suppress the evidence seized in which she asserted that the search warrant was issued without probable cause and authorized a general search, and he denied her request for jury instructions on the type of knowledge necessary for criminal conviction under G.L. c. 272, § 29. Thereafter the jury found the defendant guilty as charged.

The defendant contends first that G.L. c. 272, §§ 28C--31, are unconstitutional on their face. She claims that the statutory definitions of obscenity and knowledge are vague and overbroad, violating due process guaranties and chilling the right to expression, and that the disparity of procedural treatment afforded books and 'other matter' in G.L. c. 272, §§ 28C--30, violates equal protection guaranties. Second, the defendant argues in her motion for a directed verdict that the Commonwealth failed to sustain its burden of proof on the issues of obscenity and knowledge. Third, she attacks the denial of her motion to suppress and the denial of her requests for jury instructions.

Our decision today in COMMONWEALTH V. 707 MAIN CORP., --- MASS. ---, 357 N.E.2D 753,A disposes of the defendant's first contentions. In that case we held that G.L. c. 272, §§ 28C--31, are constitutional on their face; that they give sufficient notice of proscribed conduct; that they provide adequate procedures for the protection of rights under the First Amendment to the United States Constitution; and that their distinction between books and other matter is constitutionally permissible. That case and another related case also decided today, DISTRICT ATTORNEY FOR THE N. DIST. V. THREE WAY THEATRES CORP., --- MASS. ---, 357 N.E.2D 747,B dispose of the contention that the prosecution failed to meet its burden of producing evidence on the issue of obscenity. The films themselves constitute sufficient evidence for the trier of fact to find obscenity, without the introduction of expert testimony on Commonwealth standards.

However, in passing on the defendant's second contention we conclude that because the Commonwealth failed to meet its burden of proof on the issue of 'knowing' dissemination as defined in G.L. c. 272, §§ 29, 31, construed in 707 Main Corp., supra, the defendant's motion for a directed verdict was improperly denied. Therefore, we do not reach or decide the defendant's remaining contentions, and reverse the judgment.

The prosecution must prove that a defendant had knowledge of the contents of matter distributed in order to constitutionally convict a defendant of criminal dissemination of obscene materials, and may prove...

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13 cases
  • Com. v. Mascolo
    • United States
    • Appeals Court of Massachusetts
    • 25 Abril 1978
    ...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 char......
  • State v. Henry
    • United States
    • Court of Appeals of Oregon
    • 9 Abril 1986
    ...District Attorney for the N. Dist. v. Three Way Theatres Corp., [371 Mass. 391, 394, 357 N.E.2d 747 (1976) ]; Commonwealth v. Thureson, [371 Mass. 387, 389, 357 N.E.2d 750 (1976) ]. We again rejected a claim that the Massachusetts Constitution requires 'greater specificity' in the statutory......
  • Com. v. Trainor, S-1009
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 14 Abril 1978
    ...See Commonwealth v. 707 Main Corp., --- Mass. --- a, 357 N.E.2d 753 (1976); Commonwealth v. Thureson, --- Mass. --- b, 357 N.E.2d 750 (1976); District Attorney for the N. Dist. v. Three Way Theatres Corp., --- Mass. --- c, 357 N.E.2d 747 (1976). The appellants ask us to reconsider certain o......
  • Com. v. Rosenberg
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 10 Diciembre 1979
    ......c. . Page 454. 272, § 31, 3 as "a general awareness of the character of the matter" disseminated. We have had occasion to construe this statutory language. See Commonwealth v. 707 Main Corp., 371 Mass. 374, 382-383, 357 N.E.2d 753, 760 (1976); Commonwealth v. Thureson, 371 Mass. 387, 389-391, 357 N.E.2d 750 (1976). In doing so we have noted that "(t)he Massachusetts definition of 'knowledge' . . . emphasizes that knowledge of legal obscenity is not required." Commonwealth v. 707 Main Corp., supra, 371 Mass. at 383, 357 N.E.2d at 760. "To require proof of a ......
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