Commonwealth v. Rex (Lawyer Weekly No. 10-118-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11480   COMMONWEALTH  vs.  JOHN REX. Norfolk.     March 3, 2014. – July 9, 2014.   Present:  Ireland, C.J., Spina, Cordy, Gants, Duffly, & Lenk, JJ.     Obscenity, Child pornography.  Habitual Offender.  Practice, Criminal, Dismissal, Grand jury proceedings.  Grand Jury.  Lewdness.  Probable Cause.  Constitutional Law, Freedom of speech and press.  Evidence, Photograph.       Indictments found and returned in the Superior Court Department on January 18, 2012.   A motion to dismiss was heard by Mitchell H. Kaplan, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Varsha Kukafka, Assistant District Attorney (Anne Yas, Assistant District Attorney, with her) for the Commonwealth. Bruce W. Carroll for the defendant. Carlo Obligato, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.     SPINA, J.  A Norfolk County grand jury indicted the defendant, John Rex, on seven counts of possession of child pornography, G. L. c. 272, § 29C, and seven counts of being a habitual offender, G. L. c. 279, § 25.[1]  Relying on Commonwealth v. McCarthy, 385 Mass. 160 (1982), the defendant filed a motion to dismiss the indictments, which the Commonwealth opposed.  He claimed that the seven photocopies of photographs of naked children (excerpted from a National Geographic magazine, a sociology textbook, and a naturist catalogue) on which the indictments were based did not constitute child pornography within the meaning of G. L. c. 272, § 29C, and were protected by his right to free speech under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights.  Following a hearing, a judge in the Superior Court allowed the motion to dismiss, concluding that none of the photocopies constituted a “lewd exhibition” of the children’s body parts as described in G. L. c. 272, § 29C (vii).  The Commonwealth filed an appeal pursuant to G. L. c. 278, § 28E, and Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501 (1996).  The case was entered in the Appeals Court, and we transferred it to this court on our own motion.  At issue is whether the judge properly dismissed the indictments on the ground that the grand jury were not presented with any evidence to support a finding of probable cause to arrest the defendant for possession of child pornography.  Because we conclude that the photocopies did not […]

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