State v. Cimino

• Decision Date: 21 May 1976
• Docket Number: No. 141,141
• Citation: State v. Cimino, 366 A.2d 1168, 33 Conn.Supp. 680 (Conn. Super. 1976)
• Court: Connecticut Superior Court
• Parties: STATE of Connecticut v. John CIMINO.

Page 1168

366 A.2d 1168

33 Conn.Supp. 680

STATE of Connecticut v. John CIMINO.

No. 141.

Superior Court of Connecticut, Appellate Session.

Argued Feb. 10, 1976.

Decided May 21, 1976.

George S. Papazoglou, Danbury, for appellant (defendant).

Guy W. Wolf III, Asst. Pros. Atty., for appellee (state).

DAVID M. SHEA, Judge.

A verdict of guilty was returned by the jury against the defendant on seven counts of promoting obscenity in violation of General Statutes § 53a-194 as charged in the information.

The statements of fact contained in the briefs indicate no dispute as to the underlying facts. On October 12, 1972, a police officer purchased five magazines and two films from the defendant in a separate section, denominated the 'Smut Hut,' of the S & J Variety Store on Osborne Street, Danbury. The five magazines bear the titles 'Climax,' Sex Porno Danish International No. 209; 'Climax,' Sex Porno Danish International No. 210; 'Climax,' Sex Porno Danish International No. 211; 'Climax,' Sex Porno Danish International No. 212; and 'Marital Bed.' During the argument of this appeal, the defendant conceded that all of those items were so-called hard core pornography. At the trial the defendant testified that he was familiar with their contents and character.

The first point raised by the defendant on this appeal is that the trial court erred in overruling his demurrer which was grounded on the claim that § 53a-194 of the General Statutes was unconstitutional for overbreadth and vagueness. We recently rejected the same contention in a similar case and we are not inclined to disturb that holding. State v. Magee, 32 Conn.Sup. 639, 353 A.2d 184.

The defendant also claims that because his arrest had occurred before the establishment by the decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (Miller I), of current definitive criteria for valid obscenity regulation, the fact that § 53a-194 may now be construed as meeting those criteria would not permit its application to prior events. In some states, where judicial construction salvaged the existing obscenity statutes by confining them within the limits that Miller I prescribed, courts have set aside convictions based on arrests which had occurred before the incorporation of the Miller I standards into the statutes. Those convictions were set aside on the ground that the statutes and procedents existing at the time of the acts involved did not provide fair notice or warning of what conduct would be deemed unlawful. State v. Welke, 298 Minn. 402, 216 N.W.2d 641; State v. De Santis, 65 N.J. 462, 323 A.2d 489. In State v. Magee, supra, we held that § 53a-194 met the Miller I criteria without the need for any judicial construction limiting its terms since those terms had already been limited by statutory definitions and by cases decided long before. State v. Andrews, 150 Conn. 92, 97, 186 A.2d 546; State v. Sul, 146 Conn. 78, 85, 147 A.2d 686; State v. Onorato, 3 Conn.Cir. 438, 441, 216 A.2d 859; State v. Keyhole Publishing Co., 3 Conn.Cir. 354, 358, 214 A.2d 838. We concluded, therefore, that well-established statutory and case law in existence at the time of the incidents involved provided adequate notice of the prohibited conduct and we upheld the convictions. The same result ultimately followed in California after Miller I had been remanded for the court to consider its obscenity statutes, essentially similar to ours, in the light of the standards announced by the United States Supreme Court. Miller v. California, 418 U.S. 915, 94 S.Ct. 3206, 41 L.Ed.2d 1158 (Miller II). Those cases are dispositive of the claim that the conviction of the defendant for conduct occurring before Miller I would involve an unconstitutionally retroactive application of our obscenity statute.

The defendant's claim that expert testimony was essential to establish the nature of the community standards which he was found to have offended was also rejected in State v. Magee, supra.

The defendant claims error in the charge to the jury that the community standards to be applied were those of the state of Connecticut rather than those of the city of Danbury. The trial of this case took place before § 53a-193 was amended to specify that in applying 'community standards, the state of Connecticut is deemed to be the community,' ¹ but after the national standard test established in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, had been eradicated by Miller I. The use of a state-wide community standard has been approved as a matter of federal constitutional law. Jenkins v. Georgia, 418 U.S. 153, 157, 94 S.Ct. 2750, 41 L.Ed.2d 642; Hamling v. United States, 418 U.S. 87, 105, 94 S.Ct. 2887, 41 L.Ed.2d 590; Miller v. California, 413 U.S. 15, 31, 93 S.Ct. 2607, 37 L.Ed.2d 419. In the absence of a statutory declaration, some courts have chosen a more limited geographical area for the community, particularly where the state may include areas of diverse cultural background. Brazelton v. State, 50 Ala.App. 723, 282 So.2d 342; Gent v. State, 239 Ark. 474, 393 S.W.2d 219. There is no suggestion in the evidence, however, of any difference between the Danbury area dnd the rest of the state as to the degree of sexually provocative material that would be tolerated by the community. Without such an indication, we can assume neither that the Danbury populace would be any more permissive in those matters than would other areas of the state nor that the selection of the entire state as the community harmed the defendant. In view of the size of our state, as well as the mixture and distribution of its population, we regard as appropriate the choice made by the trial court, which the legislature also has now confirmed.

We regard as virtually frivolous the several other exceptions to the charge briefed by the defendant, including the instruction that the jury need not be concerned with the matter of punishment or with the ultimate effects of a guilty finding and, also, the references to the defendant as an 'accused' and to the 'so-called expert' testimony. Similarly, little discussion is warranted by the claim that the defendant's motion for mistrial should have been granted because of the numerous objections made by the prosecutor during the examination of the defendant's expert witness. Only fourteen of the forty-two objections made during the questioning of that witness were overruled, and even those objections were not wholly unfounded. ...