Com. v. Trainor, S-1009

• Decision Date: 14 April 1978
• Docket Number: S-1009
• Parties: , 3 Media L. Rep. 2392 COMMONWEALTH v. Neil TRAINOR (and companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1216

374 N.E.2d 1216

374 Mass. 796, 3 Media L. Rep. 2392

COMMONWEALTH v. Neil TRAINOR (and companion cases ¹).

S-1009.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 8, 1977.

Decided April 14, 1978.

William I. Cowin, Boston (Ronald H. Rappaport, Boston, with him), for defendants.

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

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

WILKINS, Justice.

The individual defendant and the corporate defendant were found guilty in February, 1976, after a jury waived trial, on all counts of indictments charging them with having possession of obscene matter in June, 1975, with intent to disseminate it. While these appeals were progressing to this court, ² we decided three cases involving the obscenity statute which was enacted in June, 1974 (see St.1974, c. 430), after this court's holding in Commonwealth v. Horton, 365 Mass. 164, 310 N.E.2d 316 (1974), that our previous obscenity statute was unconstitutional. 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 of our holdings in those cases, and they challenge the judge's exclusion of a public opinion survey from evidence. We affirm the judgments. ³

1. In Commonwealth v. 707 Main Corp., supra --- Mass. at --- - --- ^d, 357 N.E.2d 753 we held that G.L. c. 272, §§ 28C-31, were not unconstitutionally vague under either the Constitution of the United States or the Constitution of the Commonwealth. The appellants grant that the material which they possessed for sale portrayed sexual conduct as defined in G.L. c. 272, § 31, and concede that the definition of sexual conduct is not vague. They argue, however, that the statutory definition of obscene matter is unconstitutionally vague because of that language in G.L. c. 272, § 31, as appearing in St.1974, c. 430, § 12, which requires that the matter, taken as a whole, must appeal "to prurient interest of the average person, applying the contemporary standards of the commonwealth" and must depict or describe "sexual conduct in a patently offensive way . . .." In Commonwealth v. 707 Main Corp., supra at --- ^e, 357 N.E.2d 753, we noted that the statutory definition met the requirements expressed by a majority of the Supreme Court of the United States in Miller v. California, 413 U.S. 15, 24-27, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). We concluded that, in the typical case, the trier of fact must use an average citizen of Massachusetts as the standard for determining whether particular matter appeals to the prurient interest of the average person and for determining whether the matter depicts or describes sexual conduct in a patently offensive way. Id. --- Mass. at --- - --- ^f, 357 N.E.2d 753.

The appellants argue that the statutory standard of a hypothetical average person is vague and difficult to apply. They contend, without any proof on the record, that there is no Statewide standard concerning obscenity and argue that, even if there were such a standard, a distributor of sexually oriented material must identify that standard at his peril. The Supreme Court of the United States has concluded that language substantially equivalent to our statutory definition of "obscene" is not unconstitutionally vague. See Ward v. Illinois, 431 U.S. 767, 771-773, 97 S.Ct. 2085, 52 L.Ed.2d 738 (1977); Smith v. United States, 431 U.S. 291, 308-309, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), and cases cited. The only question before us is whether the Constitution of the Commonwealth should be construed to require greater specificity. We rejected any such claim in Commonwealth v. 707 Main Corp., supra, and see no reason to change that conclusion at this time. If material displays "sexual conduct" as precisely defined by § 31, the person is adequately warned that the material may also fall within the other statutory elements of obscenity. There are numerous situations in the criminal law where conduct which fails to meet the standard of reasonableness is criminal. The trier of fact in such an instance must assess the defendant's conduct in terms of the way in which a reasonable person should have acted. The use of a standard of reasonableness has never been held unconstitutionally vague under our Constitution, and the statutory standard in this case has not been shown to be significantly different in its concept from a measure of reasonableness. See Smith v. United States, supra, 431 U.S. at 308, 97 S.Ct. 1756; Hamling v. United States, 418 U.S. 87, 104-105, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). Granting that the standard is incapable of precise articulation, we do not consider the definition of "obscene" unconstitutionally vague as applied to the appellants.

2. The appellants next urge us to reconsider our holdings that, without the introduction of expert evidence on Commonwealth norms, the material itself may be sufficient evidence for the trier of fact to find obscenity. District Attorney for the N. Dist. v. Three Way Theatres Corp., --- Mass. ---, --- - --- ^g, 357 N.E.2d 747 (1976); Commonwealth v. Thureson, --- Mass. ---, --- ^h, 357 N.E.2d 750 (1976); Commonwealth v. 707 Main Corp., --- Mass. ---, --- ⁱ, 357 N.E.2d 753 (1976). See Jenkins v. Georgia, 418 U.S. 153, 159-160, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974); Hamling v. United States, 418 U.S. 87, 104, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Kaplan v. California, 413 U.S. 115, 121, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). We see no reason to change our view on the subject.

The appellants concede that the weight of authority supports the conclusion that expert testimony is not required as part of the prosecution's proof in the typical obscenity case. ⁴ Of course, absent favorable expert testimony, the Commonwealth risks that the trier of fact will be unable to arrive at a conclusion concerning Statewide standards. A defendant is entitled to rulings or instructions that, if the trier of fact cannot determine Commonwealth norms, the defendant is entitled to a finding in his favor, and that the trier of fact must apply, not personal views, but the views of an average person in the Commonwealth as a whole. Although the defendant may offer his own evidence concerning Statewide standards (Commonwealth v. 707 Main Corp., supra --- Mass. at --- ^j, 357 N.E.2d 753), the burden of proving a violation of those standards beyond a reasonable doubt remains on the Commonwealth.

We leave to another occasion, if it should ever arise, resolution of any challenge to the statute by proof that there is no such thing as (1) a "prurient interest of the average person," (2) sexual conduct which is patently offensive with reference to contemporary Commonwealth norms, or (3) "contemporary standards of the commonwealth." The appellants have not met their heavy burden of demonstrating the unconstitutionality of the Commonwealth's obscenity statutes. We are not persuaded that there is no rational basis for the Legislature to conclude that there are ascertainable Statewide standards, even though the citizens of the Commonwealth differ from each other in numerous ways, including upbringing, place of residence, age, education, religion, and sex. The existence of Statewide standards lies at the heart of the Commonwealth's obscenity statute because such universal standards must exist if a jury selected from only one county is to apply them. Of course, if such standards do not exist, the statute must fail for unconstitutional vagueness.

3. We see no occasion to change our views, expressed in Commonwealth v. 707 Main Corp., supra at --- ^k, 357 N.E.2d 753, concerning the nature of the proof of a defendant's knowledge necessary for a conviction under G.L. c. 272, § 29. Section 29 requires proof that the defendant possessed matter which was obscene, "knowing it to be obscene." Section 31 of [374 Mass. 801] G.L. c. 272, as appearing in St.1974, c. 430, § 12, defines "knowing" as "a general awareness of the character of the matter." In our opinion in Commonwealth v. 707 Main Corp., supra at --- ^l, 357 N.E.2d at 760, we said that "knowledge of legal obscenity is not required," and noted that the statute comported with "the constitutional requirement that a defendant have knowledge of the matter's contents and general character before a criminal conviction . . . may be obtained." Id., citing Hamling v. United States, 418 U.S. 87, 123, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Commonwealth v. Thureson, --- Mass. ---, --- ^m, 357 N.E.2d 750, 760 (1976). In adhering to this position, we discern no violation of a defendant's right to due process under the Declaration of Rights.

4. We come finally to an issue with which this court has not dealt previously. The appellants argue that the judge improperly excluded a public opinion survey from evidence. Although, as will be seen, public opinion surveys are admissible in certain circumstances, we agree with the judge's decision to exclude the appellants' public opinion survey.

A properly conducted public opinion survey, offered through an expert in conducting such surveys, is admissible in an obscenity case if it tends to show relevant standards in the Commonwealth. We see no meaningful distinction between a properly conducted public opinion survey offered to show community norms and the testimony of an expert who states his views on the opinion of the public concerning the portrayal of certain allegedly obscene conduct. We have already recognized the admissibility of expert testimony of the latter type. We have said, citing Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), that triers of fact "may consider expert...