Dane Entertainment Services, Inc. (Dane), was convicted by a jury of six of disseminating an obscene film, “Small Town Girls,” in violation of G. L. c. 272, § 29, as appearing in St. 1974, c. 430, § 9, and fined $5,000. The defendant contends that the trial judge should have disqualified himself because of his personal bias against the defendant and that the alleged bias infected the trial. The defendant also challenges certain evidentiary rulings, the charge to the jury, the judge’s denial of a motion to suppress, and the constitutionality of G. L. c. 272, §§ 29 and 31.
1. The judge’s failure to disqualify himself. The defendant asserts that the trial judge should have disqualified himself sua sponte because of statements thе judge had made a year earlier when he found Dane guilty (at a bench trial) of disseminating two other obscene films. At the time the judge made those previous statements, complaints stemming from the dissemination of additional obscene films, including the instant charge relating to “Small Town Girls,” were pending before the judge in Chelsea District Court. In one of those statements, all of which were reported in the press, the judge expressed frustration over the necessity of holding a separate trial as to each movie which was the subject of a complaint. As reported in the Chelsea Reсord newspaper on September 17, 1981, 1 the judge had stated, “It’s an ongoing thing. I feel it should be stopped. It just wastes the court [sic] time to try film one, two, three, four and five and the corporation goes on making a lot of money.” On October 7, 1981," the Chelsea Record reported that in finding the defendant guilty оn two charges of disseminating obscene films, the judge characterized the films as “pure filth” and a “sick portrayal of sex,” ordered them “burned in the garbage can where they belong,” and stated, “I regret that I have no power to close the theatre down.”
*448 Prior to presiding at the trial in the instant case, the judge on his own motion noted that a year earlier he had heard similar charges against the defendant. 2 A court clerk remarked, “You cannot sit on this case, Judge.” The judge considered the question over the Thanksgiving weekend and the following Monday he indicated that he would go forwаrd with the trial, since the earlier proceeding involved different films. While defense counsel “expressed concern” about the judge’s possible bias, he did not ask the judge to recuse himself.
Not until after the trial did the challenged statements come to defense counsel’s attention, and he raised the matter in a motion for a new trial. That belated discovery could scarcely be considered as new matter bearing on the recusal issue. The judge’s comments had been widely published, could scarcely have escaped the notice of the defendant, and were, thus, available to the defendant’s lawyer. Cf.
Commonwealth
v.
Brown,
Article 29 of the Massachusetts Declaration of Rights requires that judges be “as free, impartial and independent as the lot of humanity will admit.”
Commonwealth
v.
Leventhal,
Ordinarily, the question of disqualification is left to the discretion of the trial judge.
Commonwealth
v.
Coyne,
In the instant case, the judge explained to the parties that he based his decision to proceed on the ground that the charges he had heard in Chelsea involved two other films. The judge’s decision to preside at the trial reveаled that he was inwardly satisfied that there was no danger of prejudice.
King
v.
Grace,
This case presents another instance in which a judge’s effusions at the disposition phase of one trial have reverberated in an unrelated proceeding. See, e.g.,
Commonwealth v. Hanscomb,
Reviеw of the record does not support the defendant’s claim that the trial was contaminated with bias. Compare Commonwealth v. Gogan, supra at 260. There was no hint of unfairness in the judge’s opening comment to prospective jurors that this case “has to do with obscenity.” The judge’s other statement during empanelment chаllenged by the defendant was to the effect that he did not want a lone female to sit on the jury because “something might happen.” This remark, while inappropriate, did .not, as the defendant contends, bespeak the judge’s predetermined belief in the defendant’s guilt. Without enumerating every challenged statement or ruling by the trial judge with respect to the testimony of the defendant’s expert, *451 we do not think that the judge’s conduct toward the witness displayed partiality to the jury.
2.
Restriction of the expert’s testimony as to the literary value of the film.
The defendant sought to qualify Charles White, an English profеssor at Southeastern Massachusetts University who has taught a film studies course since 1970, as an expert on both the literary and artistic values of “Small Town Girls.” White testified during a voir dire that he received his doctoral degree in English from Harvard University in 1967 and that he has taught courses in literature at various universities for approximately the last twenty years. He educated himself about films by viewing hundreds of them, by reading the current film-related literature, and by teaching his course on film studies. He also wrote reviews of films for the school newspaper. Following the voir dire, the trial judge refused to qualify White as an expеrt on the artistic value of “Small Town Girls,” but did permit him to testify concerning the literary value of the film. The defendant acquiesced in that limitation, no doubt because for purposes of the trial any distinction between literary and artistic value was a distinction without much difference. Not until it moved for a nеw trial, a motion the judge denied without findings after hearing, did the defendant assert that error attended the exclusion of opinion as to artistic value. Once again, therefore, the defendant is remitted to review on a “substantial risk of a miscarriage of justice” standard. Compare
Commonwealth
v.
Buckley,
In
Commonwealth
v.
United Books, Inc.,
3.
Cross-examination of the expert.
In an attempt to evoke еvidence of bias from the defendant’s expert witness, the prosecutor elicited on cross-examination that the witness had worked with the defense attorney on an earlier case. Although the witness could not recall the name of the defendant in that case, the witness was allowed to answer, over objection, that he had been paid for his services as an expert by Dane, the defendant in this case. The defendant argues that the jury could infer from that answer that the defendant was convicted previously of identical charges. It was equally inferable that the defendant had merely been embroiled in a similar controversy before and had not been convicted. Any error which may have attended the isolated reference was harmless. Cf.
Commonwealth
v.
Jackson,
4. The charge to the jury. The defendant alleges several errors in the judge’s charge, to most of which it failed to object at trial. There wаs no error.
The judge did not err when he responded to the jury’s request for the definition of obscenity by prefacing and concluding his answer with the instruction that “the First Amendment does not mean everything goes.” See
Miller
v.
California,
The judge did not err when, in the context of his otherwise proper response to the jury’s request for the definition of obscenity, he stated, “[I]s this what the Commonwealth wants and everyone can see it . . . .?” This statement, to which no objection was made at trial, was sandwiched between two proper recitations of the statutory elements of the offense.
We need not respond to other claims оf error in the charge because no objection about any of the points urged on appeal was made at trial.
5.
Motion to suppress.
None of the defendant’s arguments that the judge wrongfully denied its motion to suppress items seized from the theatre, based on alleged Fourth Amendment violations, has merit. The dеfendant claims for the first time on appeal that the police, who entered the theatre to view the film without paying the price of admission, were wrongfully on the premises. Thus, the argument goes, all of the information which formed the substance of the affidavit was obtained as a result of thе unlawful entry. Because the defendant did not raise this question of law at the hearing on the motion to suppress before the judge, it cannot be raised on appeal.
Commonwealth
v.
Cote,
The defendant next argues that the police exceeded the scope of the search warrant, which authorized the seizure of “Small Town Girls” and “all records relating to the production, manufacture [and] distribuí [ion] . . .’’of the film, by seizing a wall poster for another movie showing in the same theatre. As in
Commonwealth
v.
Dane Entertainment Servs., Inc. (No. 1),
The defendant asserts that the twenty-page affidavit for the search warrant, consisting of a transcript of a tape made by one officer describing the film scene by scene as he viеwed it, was insufficient because it failed to address the film’s lack of artistic, literary, social, or political value. This argument was rejected in
Commonwealth
v.
Dane Entertainment Servs., Inc. (No.
1),
6.
Constitutional challenges.
The defendant argues that G. L. c. 272, §§29 and 31, are unconstitutional because they deprived the defendant of its rights under the First and Fourteenth Amendments to the United States Constitution, and under arts. 1 and 16 of the Massachusetts Declaration of Rights. Specifically, the defendant contends that the obscenity statute impermissibly shifts the burden of proof onto the defendant, contains an unconstitutionally vague scienter requirement, and impermissibly restricts the defendant’s exercise of its right to free speech. These questions have been settled in favor of the statute’s constitutionality.
Commonwealth
v.
United Books, Inc.,
Judgment affirmed.
Notes
The defendant also refers us to a remark quoted in the October 1, 1981, Chelsea Record which, because it essentially repeats the statement quoted on September 17, 1981, we need not address separately. Nor do we look to the judge’s statements made and published after the instant trial in examining the possibility of bias prior to and during the trial.
While none of the discussion concerning the judge’s prior involvement appears in the transcript of the trial, we have in the record on appeal the benefit of an affidavit filed by defense counsel in support of a motion for a new trial.