Com. v. United Books, Inc.

• Decision Date: 15 August 1983
• Parties: COMMONWEALTH v. UNITED BOOKS, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 406

453 N.E.2d 406

389 Mass. 888

COMMONWEALTH v. UNITED BOOKS, INC.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued April 6, 1983.

Decided Aug. 15, 1983.

Regina L. Quinlan, Boston (Marion L. Polzella, Medford, with her), for defendant.

Lynn Morrill Turcotte, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

After a jury trial, the defendant was convicted of disseminating obscene matter in violation of G.L. c. 272, § 29, and fined $5,000. ¹ The conviction was based on a coin-operated film, "Seak's Fullfillment," which was available for viewing at the defendant's store. The defendant appealed and we granted the application for direct appellate review. On appeal, the defendant contends that the complaint should have been dismissed because G.L. c. 272, § 29, is unconstitutional under arts. 1, 12, and 16 of the Declaration of Rights of the Massachusetts Constitution, and the First Amendment to the United States Constitution. The defendant also objects to several of the judge's evidentiary rulings, and to portions of the jury instructions. We conclude that the defendant's motion to dismiss the complaint was properly denied, but that the defendant must have a new trial because of the judge's refusal to allow the defendant's expert to testify about the artistic value of the film.

At the time of the defendant's trial, G.L. c. 272, § 31, as amended through St.1977, c. 917, §§ 4-6, provided that "matter is obscene if taken as a whole it (1) appeals to the prurient interest of the average person applying the contemporary standards of the commonwealth; ² (2) depicts or describes sexual conduct in a patently offensive way; and (3) lacks serious literary, artistic, political or scientific value." We have held that "[a]lthough G.L. c. 272, § 31, expressly applies the Statewide standard only to questions of prurience, the Legislature clearly intended that the Commonwealth standard should apply also to questions of patent offensiveness." Commonwealth v. 707 Main Corp., 371 Mass. 374, 385, 357 N.E.2d 753 (1976). See District Attorney for the N. Dist. v. Three Way Theatres Corp., 371 Mass. 391, 392-393, 357 N.E.2d 747 (1976).

1. The defendant first argues that the definition of "obscene matter" in § 31 is unconstitutionally vague because there are no contemporary standards of the Commonwealth. In particular, the defendant focuses on the "patently offensive" requirement. Since § 31 was based on Miller v. California, 413 U.S. 15, 24-25, 33-34, 93 S.Ct. 2607, 2614-2615, 2619-2620, 37 L.Ed.2d 419 (1973), we see no merit in the defendant's claim under the First Amendment. See Commonwealth v. Trainor, 374 Mass. 796, 798, 374 N.E.2d 1216 (1978). In Commonwealth v. 707 Main Corp., supra 371 Mass. at 383, 357 N.E.2d 753, we held that the statute "is not unconstitutionally vague in its proscription of dissemination of obscene matter, because its definitions of 'obscene' matter and 'sexual conduct' ... provide reasonably ascertainable standards of guilt" (emphasis supplied). See District Attorney for the N. Dist. v. Three Way Theatres Corp., supra 371 Mass. at 394, 357 N.E.2d 747; 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 definition of obscenity in Commonwealth v. Trainor, 374 Mass. 796, 798-799, 374 N.E.2d 1216 (1978). See Bunker Hill Distrib., Inc. v. District Attorney for the Suffolk Dist., 376 Mass. 142, 145-146, 379 N.E.2d 1095 (1978).

However, in Commonwealth v. Trainor, supra 374 Mass. at 800, 374 N.E.2d 1216, we left open "resolution of any challenge to the statute by proof that there is no such thing as ... 'contemporary standards of the commonwealth' .... [I]f such standards do not exist, the statute must fail for unconstitutional vagueness." The defendant argues that there are no such standards because reaction to given material differs with viewer attitudes depending on such factors as sex, age, occupation, education, and life-style as well as on the setting within the community in which the material is available. In addition, the defendant notes that public tolerance of material shifts over time.

In Commonwealth v. Trainor, supra 374 Mass. at 800, 374 N.E.2d 1216, we rejected a similar challenge, concluding that "[t]he 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." We take this language to mean that proof that there are no Statewide standards of patent offensiveness requires more than the defendant's bare allegations here that attitudes vary with individual differences among viewers.

The setting in which the material is available is relevant to the question of patent offensiveness. In Commonwealth v. Plank, 378 Mass. 465, 469, 392 N.E.2d 841 (1979), discussing nude dancing, we stated that "the issue of patent offensiveness is to be decided in context." However, this does not indicate that Statewide standards do not exist, but rather than Statewide standards vary uniformly depending on the context in which the material is available. It is not unusual for the legal reasonableness of a defendant's conduct to depend on the circumstances in which the conduct occurred. Similarly, the fact that public tolerance shifts over time does not in itself show that there are no Statewide standards, so long as public tolerance shifts uniformly. The defendant has not made any arguments, other than those rejected in Trainor, to show that shifts in tolerance, if any, are not Statewide.

We reject the defendant's argument that differing verdicts on numerous complaints against it involving allegedly comparable films reveal that there are no Statewide standards. See Smith v. United States, 431 U.S. 291, 309, 97 S.Ct. 1756, 1768, 52 L.Ed.2d 324 (1977). Consistent verdicts in prosecutions under the same statute are not required, nor do we accept the defendant's allegation that all the so called "adult" movies shown at its store were comparable. Moreover, several factors may influence a jury's verdict, such as the knowledge requirement of G.L. c. 272, § 29.

We believe that our prior decisions establish that the definition of obscenity in G.L. c. 272, § 31, is not unconstitutionally vague under the Declaration of Rights or the First Amendment, and we once again "see no reason to change that conclusion at this time." Commonwealth v. Trainor, 374 Mass. 796, 799, 374 N.E.2d 1216 (1978). As to the issue left open in Trainor, we find the defendant's proof insufficient to meet their "heavy burden" of showing that Statewide standards do not exist." ³

We reaffirm our holding that the Commonwealth need not introduce extrinsic evidence of Statewide standards, but rather can rely on the material itself to prove that the material is obscene. Commonwealth v. Trainor, supra, and cases cited. The practice does not unconstitutionally relieve the Commonwealth of its burden of proof. See District Attorney for the N. Dist. v. Three Way Theatres Corp., 371 Mass. 391, 394, 357 N.E.2d 747 (1976), citing Kaplan v. California, 413 U.S. 115, 121, 93 S.Ct. 2680, 2685, 37 L.Ed.2d 492 (1973). Nor does it allow the jury to make findings not supported by the evidence. "[T]he trier of fact may draw on his own knowledge of normative views in his own community in applying statutorily prescribed community standards." District Attorney for the N. Dist. v. Three Way Theatres Corp., supra.

2. The defendant's contention that we should construe § 29 to require knowledge of the legal obscenity of the materials disseminated is also quickly decided. We have already rejected this argument, and held that the Commonwealth must prove only that the defendant had knowledge of the contents and general character of the material. Commonwealth v. Rosenberg, 379 Mass. 334, 338-339, 398 N.E.2d 451 (1979). Commonwealth v. Trainor, 374 Mass. 796, 800-801, 374 N.E.2d 1216 (1978). Commonwealth v. Thureson, 371 Mass. 387, 389-390, 357 N.E.2d 750 (1976). See Hamling v. United States, 418 U.S. 87, 120-123, 94 S.Ct. 2887, 2909-2910, 41 L.Ed.2d 590 (1974). General Laws c. 272, § 31, as appearing in St.1974, c. 430, § 12, defines "knowing" for purposes of § 29 as "a general awareness of the character of the matter." The statutory definition fully comports with Federal and State constitutional due process requirements. Hamling v. United States, supra at 123, 94 S.Ct. at 2910. Commonwealth v. Trainor, supra 374 Mass. at 801, 374 N.E.2d 1216. Commonwealth v. 707 Main Corp., 371 Mass. 374, 383, 357 N.E.2d 753 (1976).

3. We now turn to the defendant's objections to the conduct of its trial. The defendant first argues that the judge erred in refusing to allow the defendant's expert, Professor Charles Blinderman, to testify. Defense counsel stated that Professor Blinderman's testimony was offered as to contemporary community standards and as to the question of the serious artistic, social, political, and scientific value of the film. The record indicates that the judge's ruling was based on his view that Professor Blinderman was not qualified as an expert in either area. Although the focus of discussion just prior to the ruling was on Professor Blinderman's qualifications to testify as to contemporary Commonwealth standards, the judge ruled that, "I am not going to allow Professor Blinderman to testify in this case," and defense counsel had clearly stated that Professor Blinderman's testimony was also offered as to serious artistic, social, political, and scientific value.

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