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04/14/78 COMMONWEALTH v. NEIL TRAINOR (AND

April 14, 1978

COMMONWEALTH
v.
NEIL TRAINOR (AND COMPANION CASES) *FN1



Suffolk. Indictments found and returned in the Superior Court on June 12, 1975. The cases were heard by Dwyer, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, Wilkins, Liacos, & Abrams, JJ. Kaplan, J., with whom Liacos, J., joins, Dissenting. Abrams, J., with whom Liacos, J., joins, Dissenting.

SYLLABUS BY THE COURT

Obscenity, Community standard, Expert testimony. Due Process of Law, Obscenity. Constitutional Law, Freedom of speech and of press, Obscenity. Evidence, Public opinion survey.

The opinion of the court was delivered by: Wilkins

The statutory definition of obscene matter in G. L. c. 272, § 31, is not unconstitutionally vague. [798-799] Kaplan, J., with whom Liacos, J., joined, and Abrams, J., with whom Liacos, J., joined, Dissenting on the ground that the obscenity statute, G. L. c. 272, §§ 28C-31, violates art. 16 of the Massachusetts Declaration of Rights.

Expert testimony was not required as part of the prosecution's case at the trial of indictments under G. L. c. 272, § 29. [799-800]

Proof of knowledge necessary for a conviction under G. L. c. 272, § 29, does not require a showing that the defendant had knowledge of legal obscenity. [800-801]

At the trial of indictments under G. L. c. 272, § 29, there was no error in excluding from evidence a public opinion survey where the offer of proof failed to demonstrate the representativeness of the persons interviewed and failed to show that the survey results were relevant to any material issue in the case. [801-806]

The individual defendant and the corporate defendant were found guilty in February, 1976, after a jury waived trial, on all counts of indictments charging them with having possession of obscene matter in June, 1975, with intent to disseminate it. While these appeals were progressing to this court, *fn2 we decided three cases involving the obscenity statute which was enacted in June, 1974 (see St. 1974, c. 430), after this court's holding in Commonwealth v. Horton, 365 Mass. 164 (1974), that our previous obscenity statute was unconstitutional. See Commonwealth v. 707 Main Corp., 371 Mass. 374 (1976); Commonwealth v. Thureson, 371 Mass. 387 (1976); District Attorney for the N. Dist. v. Three Way Theatres Corp., 371 Mass. 391 (1976). The appellants ask us to reconsider certain of our holdings in those cases, and they challenge the Judge's exclusion of a public opinion survey from evidence. We affirm the judgments. *fn3

1. In Commonwealth v. 707 Main Corp., supra at 383-384, we held that G. L. c. 272, §§ 28C-31, were not unconstitutionally vague under either the Constitution of the United States or the Constitution of the Commonwealth. The appellants grant that the material which they possessed for sale portrayed sexual conduct as defined in G. L. c. 272, § 31, and concede that the definition of sexual conduct is not vague. They argue, however, that the statutory definition of obscene matter is unconstitutionally vague because of that language in G. L. c. 272, § 31, as appearing in St. 1974, c. 430, § 12, which requires that the matter, taken as a whole, must appeal "to prurient interest of the average person, applying the contemporary standards of the commonwealth" and must depict or describe "sexual conduct in a patently offensive way . . . ." In Commonwealth v. 707 Main Corp., supra at 384, we noted that the statutory definition met the requirements expressed by a majority of the Supreme Court of the United States in Miller v. California, 413 U.S. 15, 24-27 (1973). We concluded that, in the typical case, the trier of fact must use an average citizen of Massachusetts as the standard for determining whether particular matter appeals to the prurient interest of the average person and for determining whether the matter depicts or describes sexual conduct in a patently offensive way. 371 Mass. at 384.

The appellants argue that the statutory standard of a hypothetical average person is vague and difficult to apply. They contend, without any proof on the record, that there is no Statewide standard concerning obscenity and argue that, even if there were such a standard, a distributor of sexually oriented material must identify that standard at his peril. The Supreme Court of the United States has concluded that language substantially equivalent to our statutory definition of "obscene" is not unconstitutionally vague. See Ward v. Illinois, 431 U.S. 767, 771-773 (1977); Smith v. United States, 431 U.S. 291, 308-309 (1977), and cases cited. The only question before us is whether the Constitution of the Commonwealth should be construed to require greater specificity. We rejected any such claim in Commonwealth v. 707 Main Corp., supra, and see no reason to change that Conclusion at this time. If material displays "sexual conduct" as precisely defined by § 31, the person is adequately warned that the material may also fall within the other statutory elements of obscenity. There are numerous situations in the where conduct which fails to meet the standard of reasonableness is criminal. The trier of fact in such an instance must assess the defendant's conduct in terms of the way in which a reasonable person should have acted. The use of a standard of reasonableness has never been held unconstitutionally vague under our Constitution, and the statutory standard in this case has not been shown to be significantly different in its concept from a measure of reasonableness. See Smith v. United States, supra at 308; Hamling v. United States, 418 U.S. 87, 104-105 (1974). Granting that the standard is incapable of precise articulation, we do not consider the definition of "obscene" unconstitutionally vague as applied to the appellants.

2. The appellants next urge us to reconsider our holdings that, without the introduction of expert evidence on Commonwealth norms, the material itself may be sufficient evidence for the trier of fact to find obscenity. District Attorney for the N. Dist. v. Three Way Theatres Corp., 371 Mass. 391, 393-394 (1976). Commonwealth v. Thureson, 371 Mass. 387, 389 (1976). Commonwealth v. 707 Main Corp., 371 Mass. 374, 384-385 (1976). See Jenkins v. Georgia, 418 U.S. 153, 159-160 (1974); Hamling v. United States, 418 U.S. 87, 104 (1974); Kaplan v. California, 413 U.S. 115, 121 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 (1973). We see no reason to change our view on the subject.

The appellants concede that the weight of authority supports the Conclusion that expert testimony is not required as part of the prosecution's proof in the typical obscenity case. *fn4 Of course, absent favorable expert testimony, the Commonwealth risks that the trier of fact will be unable to arrive at a Conclusion concerning Statewide standards. A defendant is entitled to rulings or instructions that, if the trier of fact cannot determine Commonwealth norms, the defendant is entitled to a finding in his favor, and that the trier of fact must apply, not personal views, but the views of an average person in the Commonwealth as a whole. Although the defendant may offer his own evidence concerning Statewide standards (Commonwealth v. 707 Main Corp., supra at 384), the burden of proving a violation of those standards beyond a reasonable doubt remains on the Commonwealth.

We leave to another occasion, if it should ever arise, resolution of any challenge to the statute by proof that there is no such thing as (1) a "prurient interest of the average person," (2) sexual conduct which is patently offensive with reference to contemporary Commonwealth norms, or (3) "contemporary standards of the commonwealth." The 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. The existence of Statewide standards lies at the heart of the Commonwealth's ...


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