Jurisdictional Statement — Robinson v. Georgia

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IN THE f vEC 87 977

Supreme Court of the Ue sescen CLERK

OCTOBER TERM, 1977

NO. 77-915

ERNEST H. ROBINSON,

Appellant,

STATE OF GEORGIA,

Appellee.

ON APPEAL

FROM THE

GEORGIA COURT OF APPEALS

JURISDICTIONAL STATEMENT

Of Counsel: ROBERT EUGENE SMITH, Esq.

MICHAEL CLUTTER, Esa. 1409 Peachtree St., N.E.

1409 Peachtree St., N.E. Atlanta, Georgia 30309

Atlanta, Georgia 30309 Attorney for Petitioner

THE PAUL M. HARROD COMPANY, BALTIMORE, MARYLAND 21234

INDEX

TABLE OF CONTENTS

Page

Jurisdictional Statement .......---seeeeereererereeeeee

Opinion Below .......sseeeeeseesererseeeersseereees

FurledicthOn oo... cccccccccccccccccececsccssessscceres 2

Questions Presented ......-s+sseeeerreeeeeerrerseeeees

Constitutional and Statutory Provisions Involved .......+++5 4

Beatemment ....ccccccccccccvccccovesesscssesaseveess 4

How the Federal Questions Were Raised... ...--++ssee00**

The Questions are Substantial —

I. A jury composed of five persons is in-

sufficient to afford an accused in a criminal

prosecution the right to trial by jury

guaranteed under the sixth and fourteenth

amendments to the United States

Constitution .......0 cee ee eee ee ee eeeeeeeeees

Il. There is no rational basis upon which a state

may totally prohibit and impose criminal

penalties for the dissemination of any device

designed or marketed as useful primarily for

the stimulation of human genitals........++++++:

Page

Ill. A standard of scienter which authorizes

obscenity convictions on mere “constructive”

knowledge impermissibly chills the dissemi-

nation of expression protected under the

First and Fourteenth Amendments to the

United States Constitution ................... 12

IV. Appellant’s constitutional rights against un-

reasonable searches and seizures were violated

by the introduction into evidence of allegedly

obscene items seized by law enforcement

officers without a warrant.................... 14

V. The materials charged against Appellant are

not obscene as a matter of law and said

materials constitute protected expression under

the First and Fourteenth Amendments to the

United States Constitution ................... 16

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PY S dbwek 6 vi hock eset Ukekia cave skdccodusus 5

SD ARISE Ahad 6 Hennes éunewis oakacdkedac cus 6

PIN FOS Widen giniens dnc Vieduneeneaie cn cadeeus: 7

SRA Rhinitis back nuninde costo. 8

iii

TABLE OF CASES

Cases

Page

Ballew v. Georgia, No. 76-761. ..... 006 c cece eee eens 7,13,19

Bates v. Little Rock, 361 U.S., 516, 524... .... 0c cee cues 1}

Connally v. General Construction Co.,

, , | eS & f, = = PPrTTrrerreereeereer 9

Dean Milk v. Madison, 340 U.S. 349 (1951)... 6.6... ce eee 12

Frank v. Maryland, 359 U.S. 360 (1959)... 0... cece eee 3

Griswold v. Connecticut, 381 U.S. 479 (1965)............ 11

Hamling v. United States, 418 U.S. 87 (1974)............. 13

Jacobellis v. Ohio, 378 U.S. 184 (1964) ..... 6. cee eens 17

Jenkins v. Georgia, 418 U.S. 153 (1974)... 0... cece eens 17

Lee Art Theatre v. Virginia,

Es cc ccks ccepestvcveceoctnoues 15

Manual Enterprises, Inc. v. Day,

ee es odd bdnctecovvcccedecebouwses 17

McLaughlin v. Florida, 379 U.S. 184, 196....... 66560006 11

Meyer v. Nebraska, 262 U.S. 390 (1923)... . 0... cece wees 10

Miller v. California, 413 U.S. 15 (1973) .... 0. ce cee eee 7,8

NAACP v. Button, 371 U.S. 415, 433 (1963)... . 06. cece 9

Pierce v. Society of Sisters,

SE, He ccd cbedenrccevecscoceeeeses 10

Roaden v. Kentucky, 413 U.S. 496 (1973)... .. 6.6 cece eee 15

Sheltow v. Tucker, 364 U.S. 479 (1960)... 6... ccc ee 11

Williams v. Florida, 399 U.S. 78 (1970) .. 0.6... eee ee eens 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

NO.

ERNEST H. ROBINSON,

Appellant,

STATE OF GEORGIA,

Appellee.

ON APPEAL

FROM THE

GEORGIA COURT OF APPEALS

JURISDICTIONAL STATEMENT

Appellant appeals from the judgment of the Georgia Court

of Appeals entered July 7, 1977 affirming a judgment of con-

viction entered against Appellant in the Criminal Court of

Fulton County, Georgia. Appellant submits this Jurisdictional

2

Statement to show that the Supreme Court of the United States

has jurisdiction of the appeal and that substantial questions

are presented.

OPINION BELOW

The opinion of the Georgia Court of Appeals is reported

at 143 Ga. App. 37, 237 S.E.2d 436 (1977). A copy thereof

is set forth in Appendix A hereto.

JURISDICTION

The judgment of the Georgia Court of Appeals was entered

on July 7, 1977. An application for rehearing was timely filed

and it was denied on July 21, 1977. A copy of said denial is

set forth in Appendix B nereto. The Georgia Supreme Court

thereafter denied a Petition for Writ of Certiorari on Sep-

tember 8, 1977, and a Petition for Rehearing on September 27,

1977. Copies of said orders are set forth in Appendix C hereto.

A Notice of Appeal was filed in the Georgia Court of Appeals

on November 3, 1977. A copy of said Notice is set forth in

Appendix D hereto.

Appellant challenges the validity of the state statute

under which he was convicted, Georgia Criminal Code

§26-2101(c), on the ground of its being repugnant to the

Fourteenth Amendment to the Constitution of the United

States and ihe decision of the Georgia Court of Appeals is

in favor of its validity. Additionally, Appellant challenges

the validity of the state statute under which the jury was

instructed on scienter, Georgia Criminal Code §26-2101(a),

on the ground of its being repugnant to the First and

Fourteenth Amendments to the Constitution of the United

States and the decision of the Georgia Supreme Court is in

3

favor of its validity. Further, Appellant challenges the Georgia

State Constitutional provision, Article VI, Section XVI,

authorizing his trial before a five person jury and the decision

of the Georgia Court of Appeals is in favor of its validity.

The jurisdiction of the Supreme Court to review the

judgment is thus conferred by Title 28, United States Code,

Section 1257 (2). The decision of this Court in Frank v. Mary-

land, 359 U.S. 360 (1959) sustains the jurisdiction of this

Court to review the judgment of the Georgia Court of Appeals

by way of appeal in this case.

QUESTIONS PRESENTED

1. Whether a jury composed of five persons is sufficient

to afford an accused in a criminal prosecution the right to

trial by jury guaranteed by the Sixth and Fourteenth Amend-

ments to the United States Constitution.

2. Whether there is any rational basis upon which a state

may totally prohibit and impose criminal penalties for the

dissemination of devices designed or marketed as useful pri-

marily for the stimulation of human genital organs.

3. Whether a state statute which defines scienter in a

manner which authorizes obscenity convictions on mere

“constructive” knowledge impermissibly chills the disseminz-

tion of materials protected under the First and Fourteenth

Amendments to the United States Constitution.

4. Whether 4 warrantless mass seizure of allegedly ob-

scene material may be sustained under the plain view doctrine.

4

5. Whether the press materials charged against Appel-

lant are not obscene as a matter of law, constituting expression

protected under the First and Fourteenth Amendments to

the United States Constitution.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent provisions of the First, Fourth, Sixth

and Fourteenth Amendments to the United States Consti-

tution, as well as Article VI, Section XVI of the Georgia

Constitution (Georgia Code Annotated §2-5101) and Georgia

Criminal Code Section 26-2101 are set forth in Appendix E

hereto.

STATEMENT

Appellant was charged in the Criminal Court of Fulton

County with an accusation alleging distribution of obscene

material in violation of Georgia Criminal Code §26-2101.

The charge was predicated upon the sale of two magazines

entitled “Cock Hungry” and “Raw Passion” as well as the

possession of numerous alleged sexual devices. The devices

were seized from Appellant by taw enforcement officers with-

out a warrant immediately following the sale of the magazines

by him.

Appellant was tried (over his objection) before a five-

person jury in the Criminal Court of Fulton County, Georgia.

During the trial, the Court allowed into evidence, over Appel-

lant’s objection, the devices which law enforcement officers

had seized without a warrant. The jury found Appellant guilty

and he was thereafter sentenced to one year of imprisonment

and a $1,000.00 fine.

oo

ae ee Sen SNP ee

5

The conviction and sentence were affirmed by the Georgia

Court of Appeals in the judgment and opinion for which review

is sought here. The Georgia Supreme Court thereafter denied

a petition for writ of certiorari and the case is now before

this Court by way of appea: from the Georgia Court of Appeals.

HOW THE FEDERAL QUESTIONS WERE RAISED

Prior to the trial herein, Appellant filed a Motion to

Dismiss the Accusation insofar as it related to offenses under

Georgia Criminal Code §26-2101 (c). The Motion to Dismiss

was predicated upon the argument that the section in question

(relating to sexual devices) was violative of the United States

Constitution on grounds of vagueness, overbreadth and in-

vasions of the rights of due process and privacy. Appellant

also filed, prior to trial, a motion to suppress those items

that had been taken by law enforcement officers in the war-

rantless mass seizure of alleged sexual devices. The seizure was

alleged to b2 in violation of Appellant's rights under the Fourth

and Fourteenth Amendments to the United States Constitu-

tion. Appellant also filed a motion requesting trial before a

twelve-person jury, arguing that five-person juries were violative

of his rights under the Fifth, Sixth and Fourteenth Amend-

ments to the United States Constitution. All of Appellant’s

motions were overruled.

Appellant then went on trial before a five-person jury

on January 21, 1976. During the course of the trial Appel-

lant objected to the introduction of the alleged sexual devices

for all of the grounds, including the federal constitutional

grounds, previously asserted in the motion to dismiss and in

the motion to suppress. The objections were overruled.

6

At the conclusion of the trial, the jury was instructed and

said instructions contained the definition of scienter which

Appellant challenges here. The instructions followed the lan-

guage of Georgia Criminal Code § 26-2101 (a) in telling the jury

that the scienter requirement does not necessitate actual

knowledge of the contents but may be satisfied by a showing of

“constructive” knowledge thereof.

Following his conviction, Appellant filed an Amended

Motion for New Trial which presented once again to the trial

court the federal questions presented herein. The Amended

Motion for New Trial was overruled by the Criminal Court of

Fulton County without opinion.

Appellant thereafter appealed to the Georgia Court of

Appeals, raising therein all of the federal questions presented

here. That Court addressed all of the federal questions on the

merits and rejected each of them in the judgment and opinion

for which review is here sought. The Court affirmed Appellant’s

conviction and the Georgia Supreme Court thereafter denied a

Petition for Writ of Certiorari.

THE QUESTIONS ARE SUBSTANTIAL

A JURY COMPOSED OF FIVE PERSONS IS IN-

SUFFICIENT TO AFFORD AN ACCUSED IN A

CRIMINAL PROSECUTION THE RIGHT TO

TRIAL BY JURY GUARANTEED UNDER THE

SIXTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION.

7

In Williams v. Florida , 399 U.S. 78 (1970), this Court

held that the Sixth Amendment guarantee of trial by jury in

criminal cases, made applicable to the states through the

Fourteenth Amendment, does not require trials before twelve-

person panels. While approving six-person juries, the Court in

Williams left open the question of what minimum number of

jurors is required to guarantee the constitutional right to jury

trial in state criminal cases. 399 U.S., at 91 n. 28. That is the

first question before this Court in the instant case.

The arguments in support of Appellant’s position on this

question are amply set forth in the Brief of Petitioner in

Ballew v. Georgia, No. 76-761, certiorari granted January 25,

1977, oral argument heard November 1, 1977. Appellant

relies on said Brief and oral argument and here submits that the

granting of certiorari on this issue in Ballew amply demon-

strates the substantiality of this question.

Il.

THERE IS NO RATIONAL BASIS UPON WHICH A

STATE MAY TOTALLY PROHIBIT AND IMPOSE

CRIMINAL PENALTIES FOR THE DISSEMINA-

TION OF ANY DEVICE DESIGNED OR

MARKETED AS USEFUL PRIMARILY FOR THE

STIMULATION OF HUMAN GENITALS.

The state does not contend that the bulk of the material

charged against Appellant, the alleged sexual devices, are

obscene under Georgia Criminal Code §26-2101 (b) which sets

forth the standard three part Miller obscenity test. Miller v.

California, 413 U.S. 15 (1973). Rather, they are alleged to

violate Georgia Criminal Code §26-2101 (c) which provides:

“Additionally, any device designed or marketed as

useful primarily for the stimulation of human genital

organs is obscene material under this section.”

The seriousness of this question is first demonstrated by the

fact that the above definition contains none of the Constitu-

tional limitations upon obscenity set forth by this court in

Miller v. California, supra. Material may be found obscene under

this statute even though it does not meet any of the three

tests for obscenity set forth by this Court as Constitutionally

necessary in the Miller decision. The seriousness of the question

here presented is further demonstrated by the fact that the total

prohibition of such devices bears no reasonable relationship to

any conceivable public interest and has no rational basis.

In Miller, the Supreme Court noted that “state statutes

designed to regulate obscene material must be carefully

limited.” 413 U.S. 15, at 23-24. As a result of the need for

careful limitation, Supreme Court confined the permissible

scope of any state obscenity statute to the regulation of ma-

terials which “depict or describe sexual conduct.” 413 U.S. 15,

at 24. It is clear that, whatever their intended use, the items do

not depict sexual conduct.

Further, the Court in Miller went on to hold that any

state obscenity offense must be limited to those materials

which meet a three part test:

“A state offense must also be limited to works which,

taken as a whole, appeal to the prurient interest in

sex, which portrays sexual conduct in a patently

offensive way, and which, taken as a whole, do not

have serious literary, artistic, political, or scientific

value.” 413 U.S. 15, at 24.

9

The statute in question here sets forth an obscenity

offense which is not limited to the category which the Supreme

Court found acceptable in Miller. It is thus clearly unconstitu-

tional for authorizing the suppression of material as “obscene”

even though such material may not appeal to a prurient interest

in sex, may not portray sexual conduct in any way, and may

possess serious literary, artistic, political or scientific value.

Further, the statute is unconstitutionally vague in its

definition of prohibited devices. A novelty item may be

marketed or intended as an inducement to humor, but the

vendors of such items can only guess as to what is meant by

the phrase “intended or marketed primarily for the stimula-

tion of human genital organs.” It is clear that in the First

Amendment area “government may regulate. . .only with

narrow specificity.” NAACP v. Button, 371 U.S. 415, 433

(1963). In so regulating, the State must avoid the use of

language which is so vague that “men of common intelligence

must necessarily guess as to its meaning.” Connally v. General

Construction Co., 269 U.S. 385, 391 (1926).

Appellant does not contend that a properly instructed jury

could not find the items obscene if they were judged under the

Miller obscenity standards. Appellant concedes that similar

devices have been held obscene under the three part Miller

test in other cases. Appellant objects that the devices in this

case were judged not by that constitutionally acceptable three

part standard but rather by a standard of obscenity which

this Court has never approved.

In addition to falling outside any constitutionally

approved standard of obscenity, the statute carries the state

into areas where it has no conceivable public interest. In this

10

regard it is important to note that the statute is not limited to

the commercial utilization of sexual devices, rather, it prohibits

any sale of any such device to any person. Individuals are thus

prohibited from purchasing such items even for their own

personal private use on their own bodies in the privacy of their

own homes. The state has no possible interest in prohibiting an

adult from masturbating in the privacy of his or her home.

Likewise, there can be no rational basis for prohibiting the sale

of items which such individuals might utilize in so masturbating.

This court has often invalidated legislation because it

lacked a reasonable relationship to any public interest. In

Pierce v. Society’ of Sisters, 268 U.S. 518 (1925), the court

held an Oregon Mandatory public school attendance statute

invalid, noting:

“As often heretofore pointed out, rights guaranteed

by the Constitution may not be abridged by legisla-

tion which has no reasonable relation to some pur-

pose within the competency of the state.” 268 U.S.,

at 636.

In Meyer v. Nebreska, 262 U.S. 390 (1923) the court

overturned a state statute prohibiting the study of the German

language, stating:

“The problem for our determination is whether the

statute as construed and applied unreasonably in-

fringes a liberty, guaranteed. . . by the Fourteenth

Amendment. . . the established doctrine is that this

liberty may not be interfered with under the guise of

protecting the public interest, by legislative action

which is arbitrary or without reasonable relation to

some purpose within the competency of the state to

effect.” 262 U.S., at 399-400.

Even assuming, arguendo, that the state has some interest

in regulating certain uses to which sexual devices might be put,

the statute here in question is overbroad in its total prohibition

of such devices. In Shelton v. Tucker, 364 U.S. 479 (1960) this

court stated in this regard:

“In a series of decisions, this court has held that,

even though the government purpose be legitimate

and substantial, that purpose cannot be pursued

by means that broadly stifle fundamental personal

liberties when the end can be more narrowly re-

served.” 364 U.S., at 488.

In his concurring opinion in Griswold v. Connecticut, 381

U.S. 479 (1965), Mr. Justice Goldberg reiterated the impor-

tance of using the least restrictive alternative when government

regulation is in question:

“In a long series of cases this court has held that

where fundamental personal liberties are involved,

they may not be abridged by the state simply on a

showing that a regulatory scheme has some rational

relationship to the effectuation of a proper state

purpose. ‘Where there is a significant encroachment

upon personal liberty, the state may prevail only

upon showing a subordinating interest which is

compelling.’ Bates v. Little Rock, 361 U.S. 516,

524. The law must be shown ‘necessary and not

merely rationally related to the accomplishment of

a permissible state policy.” McLaughlin v. Florida,

379 U.S. 184, 196.” 381 U.S., at 497.

This case is similar to that presented in Griswold, supra,

where this court struck down a statute making any use of

contraceptives a criminal offense. In finding that law unconsti-

tutional, the court noted that it impinged upon a protected

12

right to marital privacy. The prohibition in this case impinges

upon the same fundamental right. The statute is not limited

to the prohibition of the sale of such devices to minors nor

to the prohibition of the commercial use of such devices. It

merely sweeps all devices within the definition of obscenity

and therefore criminalizes their distribution to anyone, in-

cluding married couples.

Although this court may not specify how a legislature is

to meet legitimate social ends, it may prohibit the utilization

of means that are unduly restrictive of individual freedom.

Dean Milk v. Madison, 340 U.S. 349 (1951).

All of the above argument proceeds on the premise that

the state has some legitimate interest in regulating the uses to

which sexual devices might be put. Appellant does not concede

that the state has any such interest. But, even if it does, no

possible rational basis can be imagined for total prohibition

of such devices. No conceivable public interest can be served

by prohibiting an individual from purchasing an item to further

his own masturbation or to utilize in sexual activities with

his spouse.

II,

A STANDARD OF SCIENTER WHICH AUTHOR-

IZES OBSCENITY CONVICTIONS ON MERE

“CONSTRUCTIVE” KNOWLEDGE IMPERMIS-

SIBLY CHILLS THE DISSEMINATION OF EXxX-

PRESSION PROTECTED UNDER THE FIRST AND

FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

13

In its charge to the jury, the trial court gave the following

instruction on the issue of sclenter:

“(T]he word ‘knowing’ as used herein shall be

deemed to be the actual knowledge or constructive

knowledge of the obscene contents of the subject

matter. A person has constructive knowledge of the

obscene contents if he has the knowledge of facts

which would put a reasonable and prudent person

on notice as to the suspect nature of the material.

This instruction is in accord with the terms of Georgia

Criminal Code §26-2101 (a) which Appellant challenges. The

seriousness of this question is well demonstrated by the fact

that certiorari has been granted on this precise issue in Ballew v.

Georgia, No. 76-761, question number 2, certiorari granted

January 25, 1977. Oral argument was heard in Ballew on

November |, 1977.

The most recent pronouncement of this Court on the

requirements of scienter is found in Hamling v. United States,

418 U.S. 87 (1974). There, this Court stated:

“We think the ‘knowingly’ language of 18 U.S.C.

$1461 and the instructions given by the district

court in this case satisfy the constitutional require-

ments of scienter. It is constitutionally sufficient

that the prosecution show that the defendant had

knowledge of the contents of material he distributes,

and that he knew the character and nature of the

materials.” 418 U.S., at 123 (emphasis added).

Consistent with the above statement from Hamling, Appel-

lant contends that the prosecution must show that he “had”

knowledge rather than that he “should have had” knowledge

14

of the content, character and nature of the materials with

which he was charged. The arguments in support of this posi-

tion are amply set forth in the Brief of Petitioner in the Ballew

case and Appellant in this case relies thereon. It is here sub-

mitted that the granting of certiorari on this issue in Ballew

amply demonstrates the substantiality of the question.

IV.

APPELLANT’S CONSTITUTIONAL ~ RIGHTS

AGAINST UNREASONABLE SEARCHES AND

SEIZURES WERE VIOLATED BY THE INTRO-

DUCTION INTO EVIDENCE OF ALLEGEDLY

OBSCENE ITEMS SEIZED BY LAW ENFORCE-

MENT OFFICERS WITHOUT A WARRANT.

The substance of the testimony at a trial was that law

enforcement officers purchased two magazines from Appellant

and thereafter arrested Appellant and confiscated all the

novelty items present. No warrant was obtained to seize the

allegedly obscene items nor was any attempt made to secure

one. As the officer testified, they were instructed to seize,

without a warrant, everything in view which was primarily

intended for sexual stimulation.

The officers did not submit the question to a neutral

magistrate for a determination of whether the items were

obscene under Ga. Code §26-2101 (c). There was no indi-

cation that the warrant could not be obtained or that it would

be impractical to seek one. The officer testified that the devices

were exhibited on shelves within the store and there is no indi-

cation that they would have been removed during the time it

would take him to view the materials, describe his viewing to

15

a neutral magistrate, and obtain a warrant. Indeed, the officer

testified that Appellant was the only individual working in the

store at the time of his arrest, and there was thus no one present

to remove the goods had they been left in the store following

his arrest. It is thus clear that the officers had ample opportun-

ity to secure a warrant for the seizure of the items both before

and after the arrest of the Appellant.

The principles applicable to the warrantless seizure of

allegedly obscene material were set forth by United States

Supreme Court in Roaden v. Kentucky, 413 U.S. 496 (1973).

The Court there held that the warrantless seizure of an allegedly

obscene film was unconstitutional under the First, Fourth and

Fourteenth Amendments. The Court noted that the determina-

tion of obscenity must be made by a neutral and detached

magistrate rather than a zealous law enforcement officer

vigorously pursuing his role in adversary process of controlling

crime. The Court thus noted:

“The seizure proceeded solely on the police officer’s

conclusions that the film was obscene; there was

no warrant. Nothing prior to seizure afforded a

magistrate an opportunity to ‘focus searchingly on

the question of obscenity.” ” 413 U.S. 496, at 506.

The Court thought the issue was controlled by its prior

decision in Lee Art Theatre v. Virginia, 392 U.S. 636 (1968).

Lee Art Theatre held that the warrant for the seizure of

allegedly obscene material may not be issued on the mere

conclusory allegations of a police officer. In light of that

holding, it is even more clear that an officer may not be allowed

to make a seizure of such material with no warrant at all.

16

“If, as Marcus and Lee Art Theatre held, a warrant

for seizing allegedly obscene material may not issue

on the mere conclusory allegations of an officer, a

fortiori, the officer may not make such a seizure with

no warrant at all.’ 413 U.S. 496 at 506.

The same conclusion must be reached in this case, and

the warrantless mass seizure of all the novelty items as

“obscene” must be held unconstitutional. The Georgia Supreme

Court, in the Sewell case relied upon by the Court of Appeals

herein, held that the mass seizure was justified under the “plain

view” doctrine in that the items were in plain view. The issue

is not whether they were in view, however, but whether a

police officer or a magistrate should make the determination

of obscenity before any item is seized as obscene. The items in

Roaden, supra, and in Lee Art Theatre, supra, were also in

plain view, but this did not serve to sustain their warrantless

seizure.

On the basis of the Lee Art and Roaden decisions alone,

Appellant submits that the decision below is so clearly erron-

eous as to justify summary reversal. At the very least, however,

plenary review is called for before such a decision can be

affirmed.

V.

THE MATERIALS CHARGED AGAINST APPEL-

LANT ARE NOT OBSCENE AS A MATTER OF

LAW AND SAID MATERIALS CONSTITUTE PRO-

TECTED EXPRESSION UNDER THE FIRST AND

FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

testis

a

17

The Court is respectfully requested to independently

review the alleged obscenity of the magazines “Cock Hungry”

and “Raw Passion”. The doctrine necessitating an independent

appellate review of the alleged obscenity of materials found

obscene at the trial level had its origins in this Court’s decision

in Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962). It

was later expounded upon in Jacobellis v. Ohio, 378 U.S. 184

(1964).

The continuing validity of the Jacobellis doctrine and of

the appellate duty it imposes was affirmed here recently in the

case of Jenkins v. Georgia, 418 U.S. 153 (1974). That case

involved a conviction under a state obscenity statute founded

upon the exhibition of the film “Carnal Knowledge.” The Court

reversed the conviction based upon its own viewing of the film,

and the finding that the film could not, as a matter of consti-

tutional law, be held obscene.

This Court is respectfully called upon to perform the

judicial duty above delineated and thus to determine the

obscenity vel non of the magazines here. An item of similar

explicitness was before this Court in Jenkins v. Georgia, supra.

In reversing an obscenity conviction based upon the film

“Carnal Knowledge” the Court there noted that the film did

contain scenes of nudity. The Court nonetheless reversed the

conviction, noting:

“There are occasional scenes of nudity, but nudity

alone is not enough to make material legally obscene

under the Miller standards.” 418 U.S. 153, 161.

The material presently before this Court is similar to that

involved in the Jenkins decision. Whether or not the Court

might find this material to be “soft core” pornography, it is

18

clearly not “hard core” pornography. The Court in Jenkins

noted that material must be “hard core” in order to support a

constitutional conviction. The Court quoted from Miller to the

effect that:

“No one [may be constitutionally prosecuted] for

the sale or exposure of obscene materials unless these

materials depict or describe patently offensive hard

core’ sexual conduct.” 418 U.S. 153, at 160 quoting

413 US. 1, at 25.

The Court thus went on to reverse the conviction since the

film “Carnal Knowledge” was simply not a “public portrayal

of hard core sexual conduct.” 418 U.S. 153, at 161.

The magazines here are simply not hard core sexual

material. When judged by the standards set forth in Miller and

reaffirmed in Jenkins the conclusion is inescapable that the

book constitutes protected speech under the First and

Fourteenth Amendments of the United States Constitution.

In light of this Court’s pronouncement that no one may

be constitutionally prosecuted in this area except for the sale

of “materials which depict or describe patently offensive ‘hard

core’ sexual conduct,” 418 U.S., at 153, the decision below

is so clearly erroneous as to justify summary reversal. At the

very least, however, plenary review is required before Appel-

lant’s conviction may be affirmed.

er eee | ee ee ae

19

CONCLUSION

The questions submitted herein are so substantial as to

require plenary review. With respect to Questions I and III, the

substantiality is demonstrated by the grant of certiorari on

identical questions in Ballew v. Georgia, supra. With respect

to Question Number II, the substantiality is demonstrated by

the fact that, since Appellant’s conviction, numerous other

individuals have been prosecuted and convicted for the sale of

devices designed for sexual stimulation. If the statute is un-

constitutional as Appellant contends, the importance of such

a determination will extend to numerous other cases. The

Court is thus respectfully requested to note probable juris-

diction and set the case for briefing and oral argument.

Respectfully submitted,

ROBERT EUGENE SMITH, Esq.

1409 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 892-8890

Counsel to Appellant

Of Counsel:

MICHAEL CLUTTER, Esq.

1409 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 892-8890

A.1

APPENDIX A

436 Ga.

? — ——

—_—~

Ernest H. ROBINSON

vv.

The STATE.

No. 54054.

Court of Appeals of Georgia,

Division No. 3.

July 7, 1977.

Rehearing Denied July 21, 1977.

Defendant was convicted in the State

Marshall, J., held that: (1) statute defining

offense was not violative of cortsLitulional

norms because of vagueness, overbreadth,

and imperfect standards and definitions;

(2) jury could lawfully return a finding of

’ guilty of distributing obseene matcrial upon

being convinced beyond reasonable doubt

that any one of svized items was obscene;

(3) separate findings as to cach item were

not required; (4) same standards of obsccn-

ity applied to both magazincs and stimula-

Live deviecs inasmuch as ilems were a part

of generic term “obscene material” pro-

seribed by statute; (5) five-man jury was

not constitulionally inadequate; (6) devices

did not require a separate adjudication as Lo

obscenity lo avoid prior restraint since they

came within. definition of statute and,

237 SOUTH EASTERN REPORTER, 24 SERIES

hence, were olmcenc as a matter of law; (7)

seizure of materials thal were openly dis-

played in plain view for everyone who en-

tered to see came within plain view doc-

rine, and (8) voluntary closure of store by

owner after arrest of clerk did. not consti-

tule a slate jnitialed or state en re-

straint as a matter of law of right to con-

Linue to conduct a lawful busincas. .

Affirmed. ,

Deen, P. J., concurred specially and

filed opinion.

| 1. Criminal Law @13.1(13)

and definitions. Code, § 26-2101(c).

2 Indictment and Information @=125(1)

It is permissible to embrace in a single

count multiple commissions of the same

crime if of the same type.

3. Indictmient and information ¢=125(4)

A single count embracing multipic

commissions of the same crime if of the

same type, docs not charge scparate of-

fenses but includes only one offense. Code,

§ 26-2101(c).

4. Obscenity 217

Jury could lawfully return a finding of

guilty of distributing of ta epee

being convinced beyond a reasonable doul)t

that any one of the seized items was ob-

scence. Code, § 26-2101 (c).

5. Obscenity 18

Separate findings as to cach item al-

leged to he obscene were not required

where a finding as to any one was suffi-

cient t© support verdict and sentence.

Code, § 26-2101(e).

6. Obacenity 95 '

Same standards of obscenity applied W

both magazines and stimulalive devices

svized al time of arrest inasmuch as items

were a part of generic Lerm “obscene matc-

rial” proscribed by statute. Code, § 26—-

2101(c).

A.2

ROKINSON ¥. STATE - . Ga 437

1. Constitutional Law @= 267

A Cive-man jury is constitulionally ade-

quate for all courts cxcept superior courts

and is not violative of due process.

& Obscenity 5

Searches and Seizures = 3.1(4)

Sermure of allegedly obscene material

thal was openly dixplayod in plain view for

everyone who cntored to sce came within

plain view dectrine and, hence, was valid

even Unough there was ne warrant nor a

prior judiesal detorminauon as lo obscenity.

Code, § 26-2101(e)

a violauion of law committed in presence of

police officer and were subject to sciure

without warrant or pror judicial delormi-

nation of obscenity. Code, § 26-210Kc).

ll. Constitutional Law @= 88

Voluntary closing of bookstore by own-

er after arrest of clerk for illegal sale of

pornographic paraphernalia did not amount

lo a slate initiated or a slate enforced re-

straint as a matier of law of right to con-

' tinue to conduct a lawful business. Code,

§ 2%-210\(e).

12. Obecenity 5

Materials that come within definition

of statute defining pornographic parapher-

nalia are obscene as a matter of law. Code,

§ 26-2101(c).

Nadler, Gold & Bexkin, Gary M. Nuvler,

Donaki C. Heskin, AUianta, for appellant.

Hinson McAuliffe; Sol, Leonard W. Rho-

des, Asst. Sol, AUanta, for appellee.

Cite 08 237 3.0.28 408

MARSHALL, Judge.

Appellant appoals his conviction for a vie

lation of the illegal sale of pornographic

paraphernalia, a misdemeanor, end his sen-

tence to confinement for 12 month. He

does not raise any issue as lo the sufficiency

of the evidence, but resincts his caumer-

of

magazine for Une slated reason Uhal to do

woukl subject him te arrest. The ufficer

left the store, and a back-ap officer, net -

known to Robinson, entered Une store and

peckod up amether magazine aod slarte:! lo

purchase i. Al that moment, the [int

officer reentered the store, and Robinson

refused to complete the sale to the second

officer numerous

F

sUumulators and (wo magazines were con! is-

cated, and Robinson was placed under ar-

rest. Inasmuch as Robinson was the sole

clerk in Une store, and pursuant bo the pre-

vious inatructions of Lhe owners or opera-

lors of the store, the store was cloned and

locked upon Robinson's arrest. The appel-

lant asserts as cnumerations of error thal

Uhere was an illegal search and scisure;

Unal the locking of the store was

!

i

tuning in one count of Lhe sale or possession

with intent to sell of mayasingn with the

items for eroue suimulalion, was « uplicious

and Unat Ube slatutle involved was violative

A.3

438 Ge. 237 SOUTH BASTERN KEPOKTEK, 2d SERIES

20%4e) (Gab. 196A, pp. 1249, 1902; 1

944; 1975, p. 498) violates constilutlional

simply defined in more definite terms what

had been previously referred to as “materi-

to require a now determination as lo the

constitutional insucs sought to be raised.

There ia no meril to these two enumer-

ations, Sewell v, State, 238 Ga. 495(1), 233

§.E.2d 187 (1977).

{2-6} 3. Enumorations 2, 6, 7, ani &

assert Uhat the trial judge erred in allowing

the jury to consider as one offense the sale

of or the possession with intent to sell the

(wo magazines, Logether with Lhe stimula-

Live devieos; in refusing to require the jury

lo make a separate finding as to obsconily

as Lo cach item; in giving a charge defining

two offenses, yet requiring the jury bo re-

turn a single verdict; and in requiring the

jury to apply lo the stimulative deviews the

standards of ovscenily relative lo Lhe maga-

ines. As all of Unene cnumerations are

related, they arc subject Wo the same mener-

al anawor, As stated hy the Supreme Court

in Sewell v. State, 218 Ga. 495, 235 S.6.2d

187, supra, the adkdlition of subsection (c) Lo

Cole Ann. § 26-2101 did nol croale a now

crime. The 1975 amendment simply

defined in more concrete verms what had

been referred to previously aa “material,”

and made no substantive change in the law

against distributing obscene materials. 1t

is permissible lo embrace in a single count

multiple commissions of Lhe same crime, if

of the same type. Such a count docs nol

charge separate offenses, but includes only

8M, 634(1), 62 S.B. 558 (1908); Young v.

Stato, 4 Ga.App. 827(4), 62 S.6. 568 (1908).

Seo Cragg v. State, 224 Ga. 196, 160 S.6.21

817 (1968); Milhollan v, State, 221 Ga. 165,

166(2), 143 S.EB.2d 730 (1965). In this case,

the appellant was charged with selling or

possessing with intent to soll 59 separate,

olmcene iloma. The Lrial court maticulounl y

defined obscenity, Ure matter of iatent, anil

the other perLinent chements of distribuling

obecene material. The statute provides

Uhat il in a violation to sell “any” olmeone

matorialn or to pomens the same with the

intent to sell, In Unis case, the jury could

lawfully return u finding of guilty of dis-

inbuting obmcene material upon being con-

vineed beyond reasonable doubt that any

one of Une 59 items was ohsconc, The jury

had the benefit of its own visual ohserva-

ion of the evidence, the lestimony of «

defense expert, and its own knowlege of

contemporary community standanis as

defined and limited hy the charge of the

court. We cannot say that the jury's find-

ing Uhat any one or all of the items were

obacene, a unsupported by the evulence nor

that they were required lo make separate

findings as to cach items where a finling as

to any one is sufficient lo support Lhe ver-

diet and sentence. See Lowe v. Slate, 57

Ga. 171(2) (1876). For Ure same reasons, it

was not error for the trial judge lo charge

the jury the same standaria of olmcenily

apphed lo both the magaaines and the slim-

ulative devieus, inasmuch as stimulative de-

views and mayuzines are a part of the go-

neric term “obscene material.”

(7) 4. In his third enumeration of cr-

ror, the appellant maintains that a five-man

jury violates Une concepts of due process.

Contrary Lo his position, the Supreme Court

of our slate has held that, alsent a holding

by the United States Supreme Court that «

five-man jury in constitutionally inase-

quate, a five-man jury is constitutionally

adequate as proseribed by the 1945 Conati-

tution of Georyia for all courts except supe-

rior courts, Sanders v. Slate, 24 Ga. 586,

487, 216 S.4.2d 838 (1975); Baliew v. State,

138 GaApp. S880, 53K6), 227 SA

(1976). This cnumeration is without merit.

; , . os > —-_- —

‘ ,

BEST ‘COPY AVAILABLE

— -_—

A.4

led « prior resiraint of fulure

sales of valid as well as invalid morchan-

dine. The arresting officer \astified Uhat he

was famihar with the diaplayod merchan-

+H

fi

HF

ad

f

&

if

oF

if

.

i

§

E

di

f

li

1), 23 S.B.2d 308 (1973). Devices

va Unone involved here (io nok roquire a

iz

Fy

thus hocame evudence of a violation of law

committed in the presence of the officer.

As lo the closing of ihe store, this was nol a

padiocking hy the slate. The owner or

operator of Une stare voluntarily cleetod Lo

clone the. store. Thux, there was no slale-

initialed or statownforeed restraint as a

matter of law of Une right to continue to

combuct a lawful business. This enumer-

ative likewise is wilhoul ment.

Judgment affirmed.

WEN, J., concurs.

DEEN, P. J., concurs spociaily.

DEEN, Presiding Judge, concurring spe-

cally.

The record reflecta Uhat the defense ex-

pert referred to in Division Three was a sex

expert in pornotherapy, a member of The

Amorican Association of Sex Counselors,

certified by Une State of Georgia Vocational

and contain scientific value [or the average

Uhat Lhere is a sLrong opinion Unak repromord

sexuality can lead lo violent oulpourings

for use. The reverse of this was dincusorl,

but Unis lalter argument was nol consuiered

the United States had expressed “Uhe Uraf-

fic in obscenity and pornography is a mat-

ter of national concern.”

The jury, a cross section of average citi-

rons, could have rejected and chose Lo disbe-

lieve the testimony of the expert witnens as

lo clase up pholngrapha of group sex con-

taining scientific value for the average

woman or man aml may have chen Ww

“use their own common sense as intelligent

human beings . . .” Feklschnoider v.

State, 127 Ga.App. 745, 746, 195 S.B.2d 184,

185, or Uhey may have deciklod the “right of

privacy” Lo control their own body politic of

community standarnix superseded the First

Amendment rights of defendant, particular-

ly since olwcenity is not protected by Firat

Amendment [reedoma, Compare Hoo v.

Wade, 410 U.S. 113, 93 S.Cu 705, 35 L. Ed.2d

147, and Doe v. Bolton, 410 US. 179, 93

S.Ct. 739, 35 L.Ed.2d 21.

A.5

APPENDIX B

Court of Appeals of the State of Georgia

Atlanta, July 21, 1977

The Honorable Court of Appeals met pursuant to adjourn-

ment. The following order was passed:

54054 Ernest H. Robinson v. The State

Upon consideration of the motion for a rehearing filed in this

case, it is ordered that it be hereby denied.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,

I certify that the above is a true extract from the minutes of the

Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

/s/ Morgan Thomas

Clerk

A6

APPENDIX C

Clerk’s Office, Supreme Court of Georgia

Dear Sir:

Case No. 32834, Robinson v. State.

The Supreme Court today denied the writ of certiorari

in this case.

Marshall, J., disqualified.

Very truly yours,

Mrs. Joline B. Williams

Clerk

Clerk’s Office, Supreme Court of Georgia

Dear Sir: Atlanta, September 27, 1977

The motion for a reconsideration was denied today:

Case No. 32834, Robinson vy. State.

Marshall, J., disqualified.

Yours very truly,

Mrs. Joline B. Williams,

Clerk

Atlanta, September 8, 1977

A.7

APPENDIX D

FILED IN OFFICE

November 3, 1977

/s/ Morgan Thomas

Clerk, Court of Appeals of Georgia

IN THE COURT OF APPEALS

FOR THE STATE OF GEORGIA

Case No. 53417

ERNEST ROBINSON,

Appellant,

Vv.

STATE OF GEORGIA,

Appellee.

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that ERNEST ROBINSON, the

Appellant above-named, hereby appeals to the Supreme Court

of the United States from the Order of the Georgia Court of

Appeals affirming the judgment of conviction entered against

Appellant herein. A Petition for Rehearing was denied by the

Georgia Court of Appeals on July 21, 1977. The Georgia

Supreme Court thereafter denied a Petition for Writ of

Certiorari on September 19, 1977 and a Petition for Rehearing

on September 27, 1977, Robinson v. State, No. 32834.

A.8 AS

This appeal is taken pursuant to the authorization of 3. The pertinent provisions of the Sixth Amendment are:

28 U.S.C. § 1257 (2).

“In all criminal prosecutions, the accused shall enjoy

/s/ ROBERT EUGENE SMITH, Esq. the right to a speedy and public trial, by an impartial

MICHAEL CLUTTER, Esa. jury of the State and district wherein the crime shall

1409 Peachtree Street, N.E. have been committed. . .”

Atlanta, Georgia 30309

4. The pertinent provisions of the Fourteenth Amendment

(404) 892-8890

are:

Counsel to Appellant

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

APPENDIX E of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

5. Article VI, Section XVI of the Georgia Constitution

(Georgia Code Annotated §2-5101) provides:

CONSTITUTIONAL AND STATUTORY PROVISIONS

1. The pertinent provisions of the First Amendment are:

“The right of trial by jury except where it is other-

wise provided in this Constitution, shall remain

inviolate, but the General Assembly may prescribe

any number, not less than five, to constitute a trial,

or traverse jury, except in the superior court.”

“Congress shall make no law. . abridging the freedom

of speech, or of the press. . .”

2. The pertinent provisions of the Fourth Amendment are:

6. Georgia Criminal Code § 26-2101, Acts of 1975, p. 498,

“The right of the people to be secure in their persons, id foll

provides as follows:

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

“(a) A person commits the offense of distributing

obscene materials when he sells, lends, rents, leases,

gives, advertises, publishes, exhibits or otherwise

disseminates to any person any obscene material of

any description, knowing the obscene nature thereof,

or offers to do so, or possesses such material with the

intent to do so, provided that the word “knowing,”

A.10

as used herein, shall be deemed to be either actual

or constructive knowledge of the obscene contents

of the subject matter, and a person has constructive

knowledge of the obscene contents if he has

knowledge of facts which would put a reasonable

and prudent person on notice as to the suspect

nature of the material. Provided, however, the char-

acter and reputation of the individual charged with

an offense under this law, and if a commercial dis-

semination of obscene material is involved, the

character and reputation of the business establish-

ment involved may be placed in evidence by the

defendant on the question of intent to violate this

law. Undeveloped photographs, molds, printing

plates and the like shall be deemed obscene not-

withstanding that processing or other acts may be

required to make the obscenity patent or to dis-

seminate it.

(b) Material is obscene if:

(1) to the average person, applying contempor-

ary community standards, taken as a whole, it pre-

dominantly appeals to the prurient interest, that

is a shameful or morbid interest in nudity, sex or

excretion;

(2) the material taken as a whole, lacks serious

literary, artistic, political or scientific value, and

(3) the material depicts or describes, in a

patently offensive way, sexual conduct specifically

defined in subparagraphs (i) through (v) below:

(i) acts of sexual intercourse, heterosexual

or homosexual, normal or perverted, actual or

simulated;

(ii) acts of masturbation;

A.1l1

(iii) acts of involving excretory functions or

lewd exhibition of the genitals;

(iv) acts of bestiality or the fondling of sex

organs of animals;

(v) sexual acts of flagellation, torture or

other violence indicating a sadomasochistic sexual

relationship;

(c) Additionally any device designed or

marketed as useful primarily for the stimulation of

human genital organs is obscene material under this

section.

(d) Material, not otherwise obscene, may be

obscene under this section if the distribution thereof,

or the offer to do so, or the possession with the

intent to do so is a commercial exploitation of

erotica solely for the sake of their prurient appeal.

(e) It is an affirmative defense under this section

that dissemination of the material was restricted to:

(1) a person associated with an institution

of higher learning, either as a member of the faculty

or a matriculated student, teaching or pursuing a

course of study related to such material; or

(2) a person whose receipt of such material

was authorized in writing by a licensed medical

practitioner or psychiatrist.

A person convicted of distributing obscene material shall be

punished as for a misdemeanor of a high and aggravated nature.

(Acts 1968, pp 1249, 1302; 1971, p. 344; 1975, p. 498.