State v. Magee, s. 61-63

• Decision Date: 28 November 1975
• Docket Number: Nos. 61-63,66,s. 61-63
• Citation: 32 Conn.Supp. 639,353 A.2d 184
• Court: Connecticut Superior Court
• Parties: STATE of Connecticut v. James MAGEE. STATE of Connecticut v. Joseph KEANE. STATE of Connecticut v. Louis WELSH. STATE of Connecticut v. Ronald DOWSETT.

Page 184

353 A.2d 184

32 Conn.Supp. 639

STATE of Connecticut v. James MAGEE.

STATE of Connecticut v. Joseph KEANE.

STATE of Connecticut v. Louis WELSH.

STATE of Connecticut v. Ronald DOWSETT.

Nos. 61-63, 66.

Superior Court of Connecticut.

Argued Sept. 10, 1975.

Decided Nov. 28, 1975.

Leonard A. Kamaras, Providence, R.I., of the Rhode Island bar, and Peter P. Buscemi, Brookfield, for appellants (defendants).

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

SHEA, Judge.

Although the facts underlying the arrests of each of these defendants differ in some inconsequential respects, the cases were transferred from the circuits in which they arose to another circuit for trial before the same judge because of the similarity of the issues involved. The defendants have been represented by the same counsel at the trial and during the appeals. The issues raised in each appeal are identical.

On various dates between August 24, 1972, and October 26, 1972, the same state policeman entered bookstores located in Norwich, Groton, New London, and Manchester, each store being operated by one of the defendants. From display racks in each store the officer selected some sex magazines and, after some conversation concerning the items, he purchased them from each defendant. Three of the defendants sold him motion picture films as well as magazines, and the fourth defendant gave him also a cartoon booklet. The conduct or conversation of each defendant indicated that he was aware of the contents of the items involved. No claim has been made that the finding of scienter made by the trial court with respect to each defendant is not supported by the evidence.

The publications collected in these police investigations bear the following titles: 'Sensuous Strangers,' European Series 106; 'Apartment Sinners'; 'Climax,' Sex Porno Danish International No. 209; 'Danish Pastry'; 'Climax,' Sex Porno Danish International No. 106; 'Swallow It'; and 'Blondie and Connie/Moon Mullins.' The films are entitled 'Bang One,' 'V-9' or 'Vex-9,' and 'Den 151.' Those materials consist almost entirely of photographs or, in one instance, of cartoon drawings of unclad men and women, sometimes in groups, engaging in a variety of sexual activities, with genitals prominently displayed. The fall within the category of 'hard core' pornography as described in these cases: Hamling v. United States, 418 U.S. 87, 92, 94 S.Ct. 2887, 41 L.Ed.2d 590; Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 51, 93 S.Ct. 2628, 37 L.Ed.2d 446; United States v. Wild, 422 F.2d 34, 36; State v. Andrews, 150 Conn. 92, 101, 186 A.2d 546. In their briefs the defendants make no contrary assertion nor do they claim that the materials, including the relatively few written articles, have any 'redeeming social value.'

Several assignments of error, including all of those relating to rulings upon evidence, have not been briefed and are deemed abandoned. Fleischer v. Kregelstein, 150 Conn. 158, 159, 187 A.2d 241; Maltbie, Conn.App.Proc. § 327. Two of the points raised in the briefs on the defendants relating to the contents of the memorandum of decision and a memorandum denying a motion to dismiss were never referred to in the assignment of errors, and they were expressly abandoned during argument. Assignments of error cannot be addressed to statements in a memorandum but only to the findings, conclusions, and rulings of the trial court. Coleman v. Bent, 100 Conn. 527, 529, 124 A. 224; Maltbie, op. cit. § 152.

I

The defendants attack the constitutionality of the obscenity statute under which they were convicted, General Statutes § 53a-194, for vagueness and overbreadth. The pertinent portion of that statute provides as follows: 'A person is guilty of obscenity when, knowing its content and character, he promotes, or possesses with intent to promote, any obscene material or performance.' General Statutes § 53a-193(a) defines the word 'obscene': 'Any material or performance is 'obscene' if, (1) considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excreation, sadism or masochism, (2) it goes substantially beyond customary limits of candor in describing or representing such matters, and (3) it is utterly without redeeming social value. . . .' The word 'promote' is defined in General Statutes § 53a-193(e) as meaning 'to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, advertise, produce, direct or participate in.'

It is a constitutional requirement that a criminal statute be sufficiently explicit to inform a person of ordinary intelligence of what conduct on his part is prohibited. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989; Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322. In State v. Sul, 146 Conn. 78, 147 A.2d 686, a claim of vagueness directed toward an earlier obscenity statute (General Statutes, Rev. 1949, § 8567), which used the words 'obscene, indecent or impure' in describing the banned material, was rejected, although the attack seems to have been concentrated upon the word 'impure.' In order to sustain its validity the scope of the statute was expressly confined to the standards for judging obscenity established in Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1 L.Ed.2d 1498. 'Section 8567 contemplates a publication, such as a book or pamphlet, which, considered as a whole, has a predominant appeal to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and goes substantially beyond the customary limits of candor in describing or representing such matters.' State v. Sul, supra, 146 Conn. 85, 147 A.2d 690. In State v. Andrews, 150 Conn. 92, 97, 186 A.2d 546, which also considered the constitutionality of the earlier statute, that definition of 'obscenity' as used in the statute was reaffirmed. In two Circuit Court cases the earlier statute was also construed as embodying the Roth tests for obscenity. State v. Cerone, 2 Conn.Cir.Ct. 144, 148, 196 A.2d 439; State v. Keyhole Publishing Co., 3 Conn.Cir.Ct. 354, 358, 214 A.2d 838. Similarly, after certain requirements that the material be utterly lacking in social value and that a national standard rather than a community standard be used were imposed in Memoirs v. Massachusetts, 383 U.S. 413, and in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, the statute was viewed as encompassing those modifications of the Roth tests. State v. Onorato, 3 Conn.Cir.Ct. 438, 216 A.2d 859. These interpretations of the earlier obscenity statute were adopted in fulfilment of the obligation of the judiciary to attempt to achieve a construction of a statute which will support its constitutionality. Adams v. Rubinow, 157 Conn. 150, 153, 251 A.2d 49.

It is apparent that the definition of 'obscenity' which the legislature adopted by enacting General Statutes § 53a-193(a) expressly incorporates the Roth-Memoris tests, which the courts of this state had used to construe the earlier statute. ¹ Consequently, the claim that General Statutes § 53a-194 suffers from the constitutional infirmity of vagueness is foreclosed by the decision of our Supreme Court in State v. Andrews, supra, which formulated the definition of 'obscenity' which the statute uses, absent some contrary development of federal law.

It has been consistently held that obscene material is not protected by the First Amendment. Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2604, 37 L.Ed.2d 419; Kois v. Wisconsin, 408 U.S. 229, 230, 92 S.Ct. 2245, 33 L.Ed.2d 312; United States v. Reidel, 402 U.S. 351, 354, 91 S.Ct. 1410, 28 L.Ed.2d 813; Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The difficulty has been to decide what falls within that category. Jacobellis v. Ohio, 378 U.S. 184, 197, 201, 84 S.Ct. 1676, 12 L.Ed.2d 793. In Miller v. California, 413, U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (Miller I), the currently prevailing guideline for obscenity regulation was enunciated as follows: 'State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, 390 U.S. (676) at 682-685, 88 S.Ct. (1298) at 1302-1305, 20 (L.Ed.2d 225). As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portrary sexual conduct in patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

'The basic guidelines for the trier of facts must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S. at 230, 92 S.Ct. (2245) at 2246, (33 L.Ed.2d 312), quoting Roth v. United States, supra, 354 U.S. at 489, 77 S.Ct. (1304) at 1311, (1 L.Ed.2d 1498); (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. . . . If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.'

The statutes reviewed in Miller I (California Penal Code §§ 311, 311.2) are similar to the...