# Jurisdictional Statement — Robinson v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0263%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1978 - **Citation:** 435 U.S. 991 ## Text D Supreme Court, U.S, > Licieen” || 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 NEE Sucks Siclk orearsaw aires Slee bs dice Ablaial 19 SE adie wi dhsblihdutedecedgade ss ‘bends ten l 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0263%3A1. Public record. Not legal advice.