19 Mass. App. Ct. 573 | Mass. App. Ct. | 1985
Lead Opinion
After viewing a full length motion picture entitled “Sorority Sweethearts” at a cinema in Chelsea operated by the defendant, two Chelsea police officers, considering the film to be obscene, obtained and executed a search warrant. The officers seized the film and other materials (timetables of the film’s showing, ticket stubs, etc.) from the cinema. A six-person jury in the Boston Municipal Court convicted the defendant under G. L. c. 272, § 29, as appearing in St. 1982, c. 603, § 3,
On appeal, the defendant claims, among other things, that the judge erred in the course of defining obscenity to the jury.
In Commonwealth v. United Books, Inc., the question was whether a coin-operated film was obscene. Based on his view that the issue of whether the film was viewed by “consenting adults” was irrelevant, the trial judge allowed the Commonwealth’s motion in limine and ordered the defendant to refrain from making an argument to the jury based upon the restriction of access to the film to consenting adults. Relying on Commonwealth v. Plank, 378 Mass. 465, 469-470 (1979), the Supreme Judicial Court found this to be error. It held that “ ‘the context’ in which the allegedly obscene material was disseminated, including the fact that it was available to consenting adults, is an appropriate consideration in determining whether the material is obscene.” Id. at 899. Further, it pointed to testimony and argument about the location and appearance of the theatre, the age of its patrons, and the presence of a sign stating “No one under 21 allowed,” as evidence “available” to the jury in determining whether the film was patently offensive. Id. at 899-900. Although it ultimately ruled that the judge’s failure to permit reference to the term “consenting adults” was not prejudicial, it did so only because the record was replete with evidence of the context in which the film was shown, and because counsel for the defendant had highlighted this evidence in his closing argument to the jury. The court left no doubt, however, that the issue of context was of relevance to a jury in determining obscenity.
In view of this evidence and of the holding of United Books, it was reversible error for the judge to deny the defendant’s
We proceed to discuss those remaining claims of the defendant which could be of significance on retrial.
The Legislature, of course, determines how criminal conduct, once established, shall be punished. See McDonald v. Commonwealth, 173 Mass. 322, 328 (1899). There is nothing in the language of the surfine law which indicates that the fine and surfine together cannot exceed the maximum financial penalty provided for the underlying offense. The “before” language in § 6A of c. 280, seized upon by the defendant, when read in context, does nothing more than require that the surfine be calculated and imposed at the same time that the fine for the substantive crime is imposed. We think the Legislature would have made the point urged by the defendant in the black letter of the surfine law had it intended to control the limits of financial penalties for crimes set throughout numerous statutes. Amendment or repeal by indirection is disfavored and would occur here if the defendant’s view is adopted, since the maximum fine in c. 272, § 29, would be reduced to $8,000 in order to allow the assessment of the surfine. Moreover, the purpose of the surfine law is to obtain added funds for the Commonwealth’s use, some of the funds perhaps being used to
(b) The defendant’s constitutional challenges to G. L. c. 272, § 29 (the substantive crime charged by the complaint), and § 31 (the definition of terms in § 29), were disposed of adversely to the defendant in Commonwealth v. Dane Entertainment Servs., Inc., 18 Mass. App. Ct. 446, 454 (1984).
(c) The defendant’s motion for dismissal of the complaint on the ground of discriminatory enforcement of the obscenity laws was properly denied. The motion was supported only by newspaper clippings
(d) The motion to suppress the film and other items seized from the cinema was properly denied. The contentions that the affidavit in support of the search warrant was insufficient to support a finding of probable cause because the affidavit
(e) The contention that the judge’s instruction that the jury must apply community standards “today” resulted in a violation of the prohibition against ex post facto laws is without merit. The phrase is the same one used by the Supreme Judicial Court in Commonwealth v. 707 Main Corp., 371 Mass. 374, 384 (1976). The use of community standards “today” would encompass both the time of the showing of the film and the time of trial, which were only eight months apart.
Judgment reversed.
Verdict set aside.
That section provides: “Whoever disseminates any matter which is obscene, knowing it to be obscene, or whoever has in his possession any matter which is obscene, knowing it to be obscene, with the intent to disseminate the same, shall be punished by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one-half years, or by a fine of not less than one thousand nor more than ten thousand dollars for the first offense, not less than five thousand nor more than twenty thousand dollars for the second offense, or not less than ten thousand nor more than thirty thousand dollars for the third and subsequent offenses, or by both such fine and imprisonment. A prosecution commenced under this section shall not be continued without a finding nor placed on file. It shall be a defense under this section if the evidence proves that the defendant was a bona fide school, museum or library, or was acting in the course of his employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization.”
The Commonwealth, upon examining the defendant’s record appendix and brief, moved for summary disposition of the appeal pursuant to rule 1:28 of this court, as amended, 10 Mass. App. Ct. 942 (1980), urging that the “appeal presents no substantial question of law.”
Supporting the Commonwealth’s motion is an eleven-page memorandum of law which argues that several claims of error raised by the defendant have been decided adversely to it in previous decisions of the Supreme Judicial Court and this court, and that the defendant’s remaining claims lack substantial merit. The Commonwealth’s motion has been opposed by
The requested instruction read as follows: “The issue of patent offensiveness should be decided in context. The jury should consider not only the films themselves, but also the circumstances under which they are to be disseminated. These circumstances include the nature and location of the
In Commonwealth v. Dane Entertainment Servs., Inc., 16 Mass. App. Ct. 991 (1983), we upheld the exclusion of testimony concerning the location and appearance of the cinema showing the film stating, in reliance on the
Defense counsel’s argument proceeded as follows: “The issue is now before you. The evidence is closed. Was it a crime to show this film? We’ve seen from the testimony of Detective Riddell that the . . . Cinema is a two-story, cement block structure. It’s got nothing on the outside, no marquee, no indication of what’s playing. You’ve got to go into the lobby to find out what is playing. You enter the lobby through the glass door. You’re immediately in front of the cashier’s booth where as Detective Riddell told us, a woman was taking tickets; and there, signs are clearly posted $5 admission, $4 for senior citizens. Also, a sign is clearly posted in that cashier’s booth, as Detective Riddell told us, that ‘No one under 18 admitted.’ and he also told us that he hadn’t seen anything but adults in that theatre. He had been there to view the film. He had come back to seize it. On both occasions there were people purchasing tickets. There were people in the theatre viewing the film. It is for adults only. So that’s the context in which this film was displayed and in which you must decide whether that was a criminal act to display the film to an audience of adults that paid to see it.”
The panel viewed the movie. Were it for us to make the finding, we would have no hesitation in saying that the film appealed solely and numbingly to the obsessively sexual (i.e. prurient) interest of the average person; that it depicted sexual conduct in a patently offensive way; that it utterly lacked serious literary or artistic value (no other was claimed for it) and that it brought to mind the dissenting Justices’ phrase “the nadir of scatology .’’Attorney Generals. “Tropic of Cancer,” 345 Mass. 11, 22 (1962).
The contention appears not to have been considered before. See Commonwealth v. Marra, 12 Mass. App. Ct. 956 (1981), where after conviction of a defendant under G. L. c. 148, § 13, a $25 surfine was added to a maximum fine of $100. The lawfulness of the surfine, however, was not an issue raised on the appeal in the Marra case.
The clippings contained various comments by public officials concerning the type of film shown at the cinema in Chelsea and portions of an investigative report by a Boston newspaper into the dissemination of pornographic materials. The clippings are not very helpful since many are illegible.
Dissenting Opinion
(dissenting). I disagree with the majority’s conclusion that a new trial is required because the requested instruction on context was not given.
While the context in which allegedly obscene material is disseminated is relevant to the issue of the material’s patent offensiveness, see Commonwealth v. United Books, Inc., 389 Mass. 888, 899 (1983), the fact that an allegedly obscene “film was available only to consenting adults is not a defense to a charge of disseminating obscene matter under § 29.” Id. at 898. Moreover, as G. L. c. 272, § 31, the statute establishing the three-part test for determining obscenity makes apparent, the question whether a motion picture film is patently offensive
Relating these principles to this case, I perceive no reversible error. As described in the majority opinion, the jury had before them extensive evidence of the context in which “Sorority Sweethearts” was shown, including testimony about the location of the theatre as part of a shopping center in Chelsea, its physical characteristics, advertisements of the film as triple x-rated, signs posted by management to keep out persons under age eighteen, and the adult composition of the audience when the officers saw the movie. The importance of context evidence was also argued at length in the closing remarks of defense counsel, see note 5 to the court’s opinion, supra, who may have gained an advantage he was not entitled to by implying to the jury that it was not a crime to show the film to an audience of consenting adults. The prosecutor’s brief reply to the argument merely sought to focus the jury on the correct inquiry in the case.
Moreover, the jury found “Sorority Sweethearts” obscene in the light of clear, comprehensive, and correct instructions by the judge on the three-part statutory test for obscenity. These instructions emphasized that the jury were to apply the attitudes and standards of the average adult citizen of the community. I think the judge properly rejected the defendant’s requested instruction, see note 3 to the court’s opinion, supra, which bore down on the consenting adult theme, and which, if given, might have misled the jury into erroneously thinking that showing “Sorority Sweethearts” only to an audience of consenting adults constituted a complete defense. There was no negative instruction on context. The judge was not required to discuss in his charge every subsidiary fact and inference, Commonwealth v. Monahan, 349 Mass. 139, 171 (1965), so long as the charge, as a whole, was adequate. Commonwealth
For the future, in order to ward off appeals like this one, I would urge some brief instruction in the final charge on context.
The prosecutor argued: “The focus isn’t whether it was adults that viewed [the film], because its not a crime to view the film.” The argument stated a correct principle of law and was an entirely proper attempt to dispel any incorrect implications created by defense counsel’s closing argument.
Although in Commonwealth v. United Books, Inc., supra, the necessity of an instruction on context was not in issue, no error was found where evidence of context was admitted and counsel for the defendant was permitted
Instructions on the three-part test for determining obscenity pose no difficulty since the standards for each part of the test are set forth in G. L. c. 272, § 31. The statute furnishes, in essence, a pattern charge. A pattern charge may be desirable for the context instruction since it deals with the relevance of certain evidence. If not properly given, a context instruction could become confusing. In a situation involving a film which will be seen by the jury I would, for the present, confine the instruction to the language in Commonwealth v. United Books, Inc., supra at 898-899, which indicates that the fact a film is shown to consenting adults is not a defense to a charge under § 29, but that the context in which the film is shown, including the fact that it was available to consenting adults, is an appropriate consideration in determining whether the film is patently obscene.
I join with majority in the disposition of the balance of the issues. I especially recommend the material in note 2 to the court’s opinion, supra, since the summary disposition process under rule 1:28 is vital to this court’s efficient operation. Although the issue of the charge on context has merit, as our disagreement illustrates, most of the remaining issues are susceptible to treatment under rule 1:28.