Motion to Dismiss — Robinson v. Georgia

Supreme Court, U.S.

FILED

JAN 30 1978

ne JR., CLERK

IN THE

Supreme Court of the United States

NO. 77-915

ERNEST H. ROBINSON,

Appellant,

VS.

STATE OF GEORGIA,

Appellee.

APPELLEE’S MOTION TO DISMISS AND

MOTION TO AFFIRM IN THE ALTERNATIVE

WITH SUPPORTING BRIEF

ON APPEAL FROM THE COURT OF APPEALS

OF GEORGIA

LEONARD W. RHODES

Assistant Solicitor General

ANDREW J. HAIRSTON

Assistant Solicitor General

Attorneys for Appellee

53 State Court Building

160 Pryor Street, S.W.

Atlanta, Georgia 30303

(404) 572-2911

TABLE OF CONTENTS

APPELLEE’S MOTION TO DISMISS AND

MOTION TO AFFIRM IN THE

ee 6 eee eks wade e whe dhe 8s te

FEAR TL ee re re

I.

II.

Il.

IV.

V.

A. Appellant did not demand a trial by jury

composed of more than five persons.......

B. A jury of five persons is constitutionally

adequate for the trial of misdemeanor

cases where the maximum possible

imprisonment is twelve months...........

Section 26-2101(c) of the Criminal Code of

Georgia does not totally prohibit the

dissemination of devices designed or

marketed as useful primarily for the

stimulation of human genitals, nor is the

statute unconstitutional for any reason

asserted by the appellant...................

Jury instructions on scienter that required the

State to prove beyond a reasonable doubt

that the accused had knowledge, either

actual or constructive, and that constructive

knowledge is knowledge of facts which would

put a reasonable and prudent person on notice

as to the suspect nature of the material, are

sufficient to meet constitutional minimum

The trial court did not err in admitting into

evidence the devices seized by the officers

at the time appellant was arrested...........

The question of obscenity vel non was not

raised by appellant in the Court of Appeals

of Georgia nor was it passed upon...........

ETS cho tnctenknne bbe cscs see cess

CERTIFICATE OF SERVICE...............

i

.. 22

A

TABLE OF CASES

Page

Alexander v. Virginia, 413 U.S. 836, 93 S. Ct.

Se Es Kan Guede ce dus UAbne dene scewencess 8

Baldwin v. New York, 399 U.S. 66 (1970)......... 5,8

Ball v. The State of Georgia, 9 Ga. App. 162,

dane donecwhenades ven se<s 4

Ballew v. The State, 138 Ga. App. 530............ 21

Bouie v. City of Columbia, 378 U.S. 347........... 10

Boyce Motor Lines, Inc. v. United States, 342 US.

arr SVoNGacnenccecrephesierccbues 9,18

California v. Kuhns, 61 Cal. App. 3d 735, 132 Cal.

ee tee ad ea swab ee wae 17

Chaplinsky v. New Hampshire, 315 U.S. 568....... i)

Colgrove v. Battin, 413 U.S. 149; 93 S. Ct. 2448

CN Se eed re eee ae eg lea ak ve es 7

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.

prac ieel doa ce vin ceeter cies 20

Dyke v. The State, 232 Ga. 817................... 21

Ginsberg v. New York, 390 U.S. 629 (1968)........ 16

Gri-wold v. Connecticut, 381 U.S. 479 (1965); 85

Pn -petce tector eds siac benwade les 11,13

Hamling v. United States, 418 U.S. 87 (1974). ..... 16

Harris v. United States, 390 U.S. 234; 88 S. Ct. 992

Shs uses vabhu kh tekmeawhs Fonds noee ce 20

Johnson v. Louisiana, 406 U.S. 356 (1971)........ 6,7

Katz v. United States, 389 U.S. 347; 88 S. Ct. 507

i css. «usec inn enanakese ysis piedseheeen 20

Kuhns v. California, ___. U.S. —__,

PU EE hon G ci cteceeentdkdsasui eases 17

TABLE OF CASES—Continued

Page

Lee Art Theatre v. Virginia, 392 U.S. 636 (1969)... 19

Manual Enterprises v. Day, 370 U.S. 478.......... 10

Miller v. California, 413 U.S. 15; 93 S. Ct. 2607

EE, dhintccNbdscksbeseiabeunese thea snne 10

Mishkin v. New York, 383 U.S. 502 (1966)........ 16

Nash v. United States, 229 U.S. 373 (1913)........ 17

Paris Adult Theatre I v. Slaten, 413 U.S. 49 (1973);

I Coad cuwavectascecunsecsee 10,11

People v. Clark, 304 N.Y.S. 2d 326 (1969)......... 10

Roaden v. Kentucky, 413 U.S. 496 (1973); 93 S. Ct.

RE RE ee ee ee Pon ey eee p Pe 19

Rosen v. United States, 161 U.S. 29 (1896)......... 15

Smith v. California, 361 U.S. 147 (1959). ......... 15

Stanley v. Georgia, 394 U.S. 557. .............. 10,13

Torres v. Delgado, 391 F. Supp. 379 (D.C.P.R.

1974), affirmed 510 F. 2d 1182 (1st Cir. 1975)... 5

United States v. Gentile, 211 F. Supp. 383 (D.C.

Re CL beet a an dunesi pace cus 10

United States v. Petrillo, 332 U.S.1............... 9

United States v. Orito, 413 U.S. 139 (1973)........ 10

United States v. Reidel, 402 U.S. 354.............. 10

United States v. 37 Photographs, 402 U.S. 376...... 10

United States v. Wurzbach, 280 U.S. 396 (1930).... 17

Williams v. Florida, 399 U.S. 78; 90 S. Ct. 1893

I kes ee ae i a ee 4,5,6,7

Youakim v. Miller, __. U.S. ___., 96 S. Ct.

ech bac ceudsnniotdbkensine eke 21

STATUTES

Page

Criminal Code of Georgia, Section 26-2021........ 10

Criminal Code of Georgia,

Section 26-2101.......... 9,10,11,12,13,14,16,18,19

Criminal Code of Georgia, Section 26-2104........ 20

Georgia Laws 1968 Session, pages 1249, 1302...... i)

Georgia Laws 1971 Session, page 344............. 9

Georgia Laws 1975 Session, page 402............. 10

Georgia Laws 1975 Session, page 498............. y

Georgia Laws 1976 Session, page 3019............ 3

Georgia Laws 1976 Session, page 3023............ 3

I sn cre a eS 10

ARTICLES

THE FIVE-MAN CIVIL JURY,

51 Geo. L.R. 120, 137 (1962).................. 6

iv

IN THE

Supreme Court of the United States

NO. 77-915

ERNEST H. ROBINSON,

Appellant,

VS.

STATE OF GEORGIA,

Appellee.

APPELLEE’S MOTION TO DISMISS AND

MOTION TO AFFIRM IN THE ALTERNATIVE

Appellee, State of Georgia, moves to dismiss pursuant

to Rule 16(1)(b) on the grounds that:

(1) The appeal does not present a substantial federal

question;

(2) The judgment rests on an adequate non-federal

basis;

(3) The Court of Appeals of Georgia had and followed

the precedents set by this Court which adequately

covered all questions raised on appeal;

(4) The Appellant did not in the trial court demand

or request that he be tried by a jury of more than five

persons; and

2

(5) The Appellant did not raise in the Court of

Appeals of Georgia the question of Obscenity vel non of

the magazines Cock Hungry and Raw Passion.

In the alternative, appellee moves to affirm the judg-

ment of the Court of Appeals of Georgia, pursuant to

Rule 16(1)(c) on the grounds that it is manifest that the

questions on which the decision of the cause depends are

so unsubstantial as not to need further argument.

In the alternative, appellee further moves to dismiss

or affirm pursuant to Rule 16(1)(d) on the grounds that

the sale of the magazines Cock Hungry and Raw Passion

by the appellant was and is sufficient to support his

single-count conviction, and the question of whether

these magazines were constitutionally protected was

not raised nor passed upon by the appellate courts of

Georgia, and this question was therefore waived by the

appellant.

ARGUMENT

5. ;

A. APPELLANT DID NOT DEMAND A TRIAL

BY JURY COMPOSED OF MORE THAN FIVE

PERSONS.

Appellant asserts on page 5 of his Jurisdictional State-

ment that he “‘. . . 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 Amendments to the United States Constitu-

tion. .. .”” This assertion is not supported by the record

in this case.

Appellant filed a motion (consolidated with other

3

unrelated cases and defendants) denominated by him a

“Second Motion To Dismiss Or In The Alternative

Demur” (R-10), in which he demanded that the accusa-

tion against him be dismissed because a five-person

jury violated the Sixth and Fourteenth Amendments. He

further asserted in said motion that “. . . the lowest

number of jurors allowed in a criminal trial is six. . . .”’

At no time did the appellant demand to be tried by a

jury composed of more than five persons, he merely

sought to have the charges against him dismissed

rather than demanding that a jury composed of six or

twelve persons be empaneled to try the case.

A copy of the appellant’s motion appearing on page

10 of the record is set forth as Appendix A hereto.

B. A JURY OF FIVE PERSONS IS CONSTITU-

TIONALLY ADEQUATE FOR THE TRIAL OF

MISDEMEANOR CASES WHERE THE MAXI-

MUM POSSIBLE IMPRISONMENT IS TWELVE

MONTHS.

Appellant was tried in the Criminal Court of Fulton

County: by a jury of five persons? selected from a panel

of twelve prospective jurors qualified to serve, with the

appellant having four peremptory challenges, the State

having three peremptory challenges, and with the appel-

lant having benefit of the first and last challenge.

The name of the Criminal Court of Fulton County has been

changed, effective January 2, 1977, by the merger of the Criminal

Court of Fulton County with the Civil Court of Fulton County

into a court known as and named the State Court of Fulton Coun-

ty. Georgia Laws 1976 Session, p. 3023.

? Effective March 24, 1976, the number of jurors was changed

from five to six in the criminal Court of Fulton County. Georgia

Laws 1976 Session, p. 3019.

4

It was necessary that each individual juror believe,

beyond a reasonable doubt, that Appellant was guilty

of the offenses with which he was charged and that all

the elements of the crimes were present, including the

fact of obscenity. Jury verdicts in Georgia must be

unanimous, Ball v. The State of Georgia, 9 Ga. App.

162, 20 S.E. 888 (1911), and the jury in this case was

so charged (T-138).

The five-man jury comports with this Court’s de-

cision in Williams v. Florida, 399 U.S. 78 (1970). In

that case, this Court held a six-man jury was constitu-

tionally adequate in State trials under the Sixth and

Fourteenth Amendments. This Court said:

“The purpose of the jury trial, as we noted in

Duncan, is to prevent oppression by the Govern-

ment. ‘Providing an accused with the right to be

tried by a jury of his peers gave him an inestimable

safeguard against the corrupt or overzealous prose-

cutor and against the compliant, biased, or ec-

centric Judge.’ Duncan v. Louisiana, supra, 391

US., at 156;88 S. Ct.,at 1451. Given this purpose,

the essential feature of a jury obviously lies in

the interposition between the accused and his

accuser of the common-sense judgment of a group

of laymen, and in the community participation

and shared responsibility that results from that

group’s determination of guilt or innocence. The

performance of this role is not a function of the

particular number of the body that makes up the

jury. To be sure, the number should probably be

large enough to promote group deliberation, free

from outside attempts at intimidation, and to pro-

vide a fair possibility for obtaining a representative

cross section of the community. But we find little

reason to think that these goals are in any mean-

ingful sense less likely to be achieved when the

5

jury numbers six, than when it numbers 12—

particularly if the requirement of unanimity is re-

tained. And, certainly the reliability of the jury as a

fact-finder hardly seems likely to be a function of its

size.

It might be suggested that the 12-man jury gives

a defendant a greater advantage since he has more

‘chances’ of finding a juror who will insist on ac-

quittal and thus prevent conviction. But the ad-

vantage might just as easily belong to the State,

which also needs only one juror out of twelve in-

sisting on guilt to prevent acquitta!.’’ (Emphasis

supplied) Williams v. Florida, 399 U.S. 78, 103,

104 (1970).

It is clear from Williams that mere size is not the

controlling factor in the Sixth Amendment right to a

jury trial. One inportant factor is the insulation pro-

vided by a law body standing between the government

and the defendant. See Baldwin v. New York, 399 U.S.

66 (1970) ; Torres v. Delgado, 391 F. Supp. 379 (D.C.P.R.

1974), affirmed 510 F.2d 1182 (1st Cir. 1975).

The Appellant has not complained that an arbitrary

exclusion of a particular class has taken place. Williams

v. Florida, 399 U.S. 78 (1970).

Appellant argues that a lesser number than 12 or

six denies a cross section—however, this Court said in

Williams:

“. . . the concern that the cross section will be

diminished if the jury is decreased in size from 12

to six seems an unrealistic one.” Walliams v.

Florida, 399 U.S. 104 (1970).

As one commentator has said (speaking of civil

cases),

6

“Because the members of the five-man jury rep-

resent a cross section unit of the community, they

will continue to bring into the courtroom the di-

versity of viewpoint, the objectivity of detach-

ment, the non-professional sense of values, and

the spirit of justice and fairness unhampered by

precedent, which are the foundations of the jury

system as we respect it. Moreover, all of the

historic values placed upon the jury as a ‘casual

tribunal’ attach readily to the five-member jury

as it actually functions in the jury box; human

virtues—and shortcomings—are fully present

whether there are twelve or five jurors.”” THE

FIVE-MAN CIVIL JURY, 51 Geo. L.R. 120,

137 (1962).

This court has not decided what the minimum num-

ber of jurors may be; however, in Williams the Court

stated in a footnote that six is above the minimum:

“We have no occasion in this case (Williams) to

determine what minimum number can still con-

stitute ‘a jury,’ but we do not doubt that six is above

that minimum” (Emphasis supplied), Williams v.

Florida, 399 U.S. 78, 92 N. 28.

If six is above the minimum, it follows that five can-

not be below the minimum. There is no number in

between.

In Johnson v. Louisiana, 406 U.S. 356 (1971) the

Court considered the jury system of Louisiana and

wrote:

“Louisiana has permitted less serious crimes to be

tried by five jurors with unanimous verdicts, more

serious crimes have required the assent of nine of

12 jurors, and for the most serious crimes, a unan-

imous verdict of 12 jurors is stipulated. In ap-

pellant’s case, nine jurors rather than five or 12

7

were required for a verdict. We discern nothing

invidious in this classification. We have held that

the States are free under the Federal Constitution

to try defendants with juries of less than 12 men.

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

. As to the crimes triable by a five-man jury,

if ‘appellant’s position is that it is easier to convince

nine of 12 jurors than to convince all of five, he is

simply challenging the judgment of the Louisiana

Legislature. That body obviously intended to vary

the difficulty of proving guilt with the gravity of

the offense and the severity of the punishment.

We remain unconvinced by anything appellant

has presented that this legislative judgment was

defective in any constitutional sense.” Johnson v.

Louisiana, 406 U.S. 356, 364, 365 (1971).

The Court again in Colgrove v. Battin, 413 U.S. 149

(1973) was faced with making a decision on the question

of the number of jurors required, this time the question

arose under the Seventh Amendment and concerned

civil juries. The Court in following Williams v. Florida,

supra, stated:

. Keeping in mind the purpose of the jury trial

in criminal cases to prevent government oppres-

sion, Williams, 399 U.S., at 100, 90S. Ct., at 1905,

and, in criminal and civil cases, to assure a fair and

equitable resolution of factual issues, Gasoline

Products Co. v. Champlin Co., 283 U.S. 494, 498,

51 S. Ct. 513, 514, 75 L. Ed. 1188 (1931), the

question comes down to whether jury performance

is a function of jury size. In Williams, we rejected

the notion that ‘the reliability of the jury as a

factfinder . . . [is] a function of its size,’ 399 U.S.,

at 100-101, 90 S. Ct., at 1906, and nothing has

been suggested to lead us to alter that conclusion.

Accordingly, we think it cannot be said that 12

members is a substantive aspect of the right of

8

trial by a jury.” 413 U.S. 149, 157; 93 S. Ct. 2448,

2453 (1973).

It is clear that the Constitution does not require any

specific number of persons to make up a trial jury; and

had the framers of the Constitution, and the Amend-

ments thereto, intended that trial juries be composed of

not less than twelve persons, or any other number, the

minimum number could easily have been written into

the Constitution. This was not done, and therefore, it

can be assumed that it was intended that the number

required be flexible and left to Congress and the legis-

latures of the various states to make that determination.

In Williams v. Florida, supra, a six-person jury was

held to be constitutionally adequate in a case involving

the felony offense of robbery where a life sentence was

imposed. In this case, the appellant was tried by a five-

person jury for a misdemeanor offense where the maxi-

mum imprisonment could be no more than twelve

months.

While it is clear that a criminal defendant is entitled

to a jury trial except for petty offenses, Baldwin v. New

York, 399 U.S. 66 (1970), there is no constitutional re-

quirement that the question of obscenity be determined

by more than one person in a civil proceeding, a judge

without the intervention of a jury is competent to per-

form this function. Alexander v. Virginia, 413 U.S. 836,

93 S. Ct. 2803 (1973).

On a criminal trial for distributing obscene materials,

it is clear that the number of jurors is constitutionally

irrelevant as long as the number is sufficient to carry

out the jury’s historical function and five jurors are

adequate for tiat purpose.

9

II.

SECTION 26-2101(c) OF THE CRIMINAL CODE

OF GEORGIA DOES NOT TOTALLY PROHIBIT

THE DISSEMINATION OF DEVICES DESIGNED

OR MARKETED AS USEFUL PRIMARILY FOR

THE STIMULATION OF HUMAN GENITALS,

NOR IS THE STATUTE UNCONSTITUTIONAL

FOR ANY REASON ASSERTED BY THE APPEL-

LANT.

The statute under which appellant was charged,

tried, and convicted is Section 26-2101 of the Criminal

Code of Georgia, Georgia Laws 1968, pages 1249, 1302,

as amended by Georgia Laws 1971, page 344, and fur-

ther amended by Georgia Laws 1975, page 498.

To fall within paragraph (c) of Section 26-2101 of

the Criminal Code of Georgia, any person charged with

an offense thereunder must, knowing the obscene nature

of the devices, sell, lend, rent, lease, give, advertise,

publish, exhibit, or otherwise disseminate the device or

devices to another person, or possess them with intent

to do so. The statute is therefore aimed at a particular

segment of society, i.e., those who distribute material

of a sexual nature, those who purvey filth for monetary

gain. These persons must be assumed to possess special-

ized knowledge of the use and purpose of the things

they sell. The statutory language conveys sufficiently

definite warning as to the proscribed conduct when

measured by common understanding and practices

employed by persons who distribute such merchandise.

See Chaplinsky v. New Hampshire, 315 U.S. 568; U.S.

v. Petrillo, 332 U.S. 1, 7-8; and Boyce Motor Lines, Inc.

v. U. S., 342 U.S. 337, 340. The section in question is

not void for vagueness in that men of common under-

10

standing must not necessarily guess at its meaning.

Persons have fair warning of the prohibited conduct.

Bouie v. City of Columbia, 378 U.S. 347. Additionally,

sections of the code which relate to the same subject

matter must be construed together. Section 26-2021 of

the Criminal Code of Georgia (Georgia Laws 1975,

page 402) makes the instrumental manipulation of an-

other’s genital organs for money a crime. When the

two sections are read together, 26-2101(c) and 26-2021,

the law is made clear that the distribution of instru-

ments commonly and primarily used to masturbate or

erotically stimulate the genital organs is prohibited

conduct.

Artificial sexual organs or extensions have been held

to be devices designed and adapted for indecent or

immoral use under 18 U.S.C.A. 1462 and thereby ob-

scene. U.S. v. Gentile, 211 F. Supp. 383 (D.C. Maryland

1962). The language in 18 U.S.C.A. 1462 has been held

to be constitutional. U.S. v. Orito, 413 U.S. 139 (1973);

U.S. v. Reidel, 402 U.S. 354; U.S. v. 37 Photographs,

402 U.S. 376; Manual Enterprises v. Day, 370 U.S. 478.

A state court has applied the obscenity statute to arti-

ficial penises. People v. Clark, 304 N.Y.S. 2d 326 (1969).

The statute in question here does not encompass

conduct that is constitutionally protected and does not

infringe upon the right of privacy, as it does not fall

within the prohibition announced in Stanley v. Georgia,

394 U.S. 557. See also Paris Adult Theatre I v. Slaton,

413 U.S. 49; and U.S. v. Orito, 413 U.S. 139.

Appellant contends that the standards or guide lines

set forth in Miller v. California, 413 U.S. 15; 93 8. Ct.

2607 (1973), used in determining obscenity in press

materials, applies to the devices described and pro-

1]

hibited by Criminal Code Section 26-2101(c). We dis-

agree. The Miller guide lines were set up by this court

to be used in protecting the rights guaranteed by the

First Amendment to the Constitution of the United

States, freedom of speech and freedom of the press.

The devices prohibited by Code Section 26-2101 are

neither speech nor press materials and are therefore

not protected by the First Amendment.

The appellant compares the Georgia obscenity statute

with that dealt with by the Supreme Court of the

United States in the case of Griswold v. Connecticut,

381 U.S. 479 (1965); 85 S.Ct. 1678. The court there

dealt with statutes prohibiting the use of contraceptives.

The Georgia statute does not prohibit the use of the

devices described in Code Section 26-2101(c) by married

couples or anyone else. As a matter of fact and law, the

statute provides exceptions whereby persons can avail

themselves of such devices, Code Section 26-2101(e).

The procedure required in the exception is the same as

that required for dispensing most drugs, including those

used for birth control.

The court in Griswold, supra, recognized a distinction

between “forbidding the use of contraceptives rather

than regulating their manufacture or sale.” 381 U.S.

479, 485; 85 S. Ct. 1678, 1682 (9, 10).

The court in Paris Adult Theatre I v. Slaton, 413 U.S.

49 (1973), again recognized a distinction between the

rights of a theater and the rights of privacy of its cus-

tomers. The court there recognized legitimate state

interests in stemming the tide of commercialized ob-

scenity, the interests of the public in the quality of life

and the total community environment, the tone of

|

12

commerce in great city centers, and possibly, the public

safety itself. The court there mentioned the arguable

correlation between obscene material and crime in

holding that state interests are involved.

There are numerous statements and restatements in

Paris Adult Theatre I v. Slaton, supra, reiterating the

rights of the several states to legislate in matters dealt

with by the Georgia Legislature in Code Section

26-2101. Some of those excerpts are:

‘“ . . From the beginning of civilized societies,

legislators and judges have acted on various un-

provable assumptions. Such assumptions underlie

much lawful state regulation of commercial and

business affairs. . . . The same is true of the federal

securities and antitrust laws and a host of federal

regulations. . . . Understandably, those who enter-

tain an absolutist view of the First Amendment

find it uncomfortable to explain why rights of

association, speech, and press should be severely

restrained in the marketplace of goods and money,

but not in the marketplace of pornography.”

413 U.S. 49, 61; 93 S. Ct. 2628, 2637 (11).

13

vidual’s desire to see or acquire obscene plays,

movies, and books. We do indeed base our society

on certain assumptions that people have the capac-

ity for free choice—those in politics, religion, and

expression of ideas—are explicitly protected. Total-

ly unlimited play for free will, however, is not

allowed in our or any other society. . . .” 413 U.S.

49, 63; 93 S. Ct. 2628, 2638.

‘*... Even assuming that petitioners have vicarious

standing to assert potential customers’ rights, it is

unavailing to compare a theater, open to the public

for a fee, with the private home of Stanley v.

Georgia, 394 U.S., at 568, 89 S. Ct., at 1249, and

the marital bedroom of Griswold v. Connecticut,

supra, 381 U.S., at 485-486; 85 S. Ct., at 1682-

1. ... 413 U.S. 49, 65; 93 S.C. 2628, 2639 (13,

‘*.. . We have declined to equate the privacy of the

home relied on in Stanley with a ‘zone’ of ‘privacy’

that follows a distributor or a consumer of ob-

scene materials wherever he goes.’ 413 U.S. 49,

66; 93 S. Ct. 2628, 2640 (17-21).

“. . The sum of experience, including that of the The State of Georgia has a legitimate interest in

past two decades, affords an ample basis for the subject matter of Code Section 26-2101(c) and the

legislatures to conclude that a sensitive, key re- same is not unconstitutional for any reason asserted by

lationship of human existence, central to family the appellant.

life, community welfare, and the development of

human personality, can be debased and distorted

by crass commercial exploitation of sex. Nothing

in the Constitution prohibits a state from reach-

ing such a conclusion and acting on it legislatively

simply because there is no conclusive evidence or

empirical data. . . . It is argued that individual

‘free will’ must govern, even in activities beyond

the protection of the First Amendment and other

constitutional guarantees of privacy, and that

government cannot legitimately impede an indi-

14

Il.

JURY INSTRUCTIONS ON SCIENTER THAT

REQUIRED THE STATE TO PROVE BEYOND A

REASONABLE DOUBT THAT THE ACCUSED

HAD KNOWLEDGE, FITHER ACTUAL OR CON-

STRUCTIVE, AND THAT CONSTRUCTIVE

KNOWLEDGE IS KNOWLEDGE OF FACTS

WHICH WOULD PUT A REASONABLE AND

PRUDENT PERSON ON NOTICE AS TO THE

SUSPECT NATURE OF THE MATERIAL, ARE

SUFFICIENT TO MEET CONSTITUTIONAL

MINIMUM STANDARDS.

Section 26-2101 of the Criminal Code of Georgia

provides, in part, as follows:

“(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 ‘knowingly,’ as used herein, shall be

deemed to be either actual or constructive knowl-

edge of the obscene contents of the subject matter,

and a person has constructive knowledge of the ob-

scene 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. .. .”” (Em-

phasis added)

The trial court charged the jury on scienter ac-

cording to the provisions of the Georgia statute,

supra, and this charge is in keeping with a line of

cases on the question of scienter in obscenity cases

dating back to the year 1896 when the court held that

15

the person charged with the offense of mailing obscene

material must know or have notice of the contents of the

material.

“The inquiry, in proceedings under Rev. Stat.

§3893, is whether the paper charged to have been

obscene, lewd, and lascivious was in fact of that

character, and if it was of that character and was

deposited in the mail by one who knew or had notice

at the time of its contents, the offense is complete,

although the defendant himself did not regard

the paper as one that the statute forbade to be

carried in the mails.”” (Emphasis added) Rosen v.

United States, 161 U.S. 29 (1896).

Rosen did not require the accused to have knowledge

of the obscenity of the material, only notice of its

contents.

“. . Eyewitness testimony of a bookseller’s perusal

of a book hardly need be a necessary element in proving

his awareness of its contents. The circumstances may

warrant the inference that he was aware of what a book

contained, despite his denial.

“We need not and most definitely do not pass today

on what sort of mental element is requisite to a consti-

tutionally permissible prosecution of a bookseller for

carrying an obscene book in stock; whether honest

mistake as to whether its contents in fact constituted

obscenity need be an excuse; whether there might be

circumstances under which the State constitutionally

might require that a bookseller investigate further, or

might put on him the burden of explaining why he did

not, and what such circumstances might be. . . .”” Smith

v. California, 361 U.S. 147, 154 (1959).

The Georgia statute, 26-2101 supra, is very similar

and compares to New York statutes dealt with by the

16

court in Mishkin v. New York, 383 U.S. 502 (1966) and

Ginsberg v. New York, 390 U.S. 629 (1968).

The Mishkin case pointed out that the New York

Court of Appeals had construed Section 1141 of the

New York Penal Law to require the “vital element of

scienter,’’ and it defined the required mental element

in these terms:

“a reading of the statute ($1141) as a whole clearly

indicates that only those who are in some manner

aware of the character of the material they attempt

to distribute should be punished. It is not in-

nocent but calculated purveyance of filth which

is exorcised. . . .”’

Section 26-2101 of the Georgia Code requires “knowl-

edge of facts which would put a reasonable and prudent

person on notice,’’ while Section 1141 of the New York

Penal Law requires the accused to be “in some manner

aware.”

The statute dealt with in Ginsberg defined knowingly

as ‘“knowledge”’ of, or “reason to know’”’ of, the char-

acter and content of the material.

Neither Mishkin nor Ginsberg requires actual knowl-

edge as contended by the appellant herein. Both cases

were reviewed and followed in Hamling v. United States,

418 U.S. 87 (1974), where the court construed 18 U.S.C.

§1461, and held:

“To require proof of a defendant’s knowledge of

the legal status of the materials would permit the

defendant to avoid prosecution by simply claim-

ing that he had not brushed up on the law. Such

a formulation of the scienter requirement is re-

quired neither by the language of 18 U.S.C. §1461

nor by the Constitution.”

17

In the case of Kuhns v. California, ___ U.S. —__,

97 S. Ct. 2938, this court recently denied petition for

certiorari to review jury instructions based upon the

California obscenity statute which defines “knowingly”

as “(be] aware of the character of the matter... .”

California v. Kuhns, 61 Cal. App. 3d 735, 132 Cal. Rptr.

725, 737 (1976).

Appellant concedes that proof of scienter may be

made by circumstantial evidence. Appellee contends

and respectfully submits that to prove the accused was

aware of facts that would put a reasonable and prudent

person on notice of the suspect character of the material,

is proof of knowledge of the character of the material by

circumstancial evidence.

In the case of Nash v. United States, 229 U.S. 373

(1913), the court said:

“Tn many instances a man’s fate depends upon his

rightly estimating, that is as the jury subsequently

estimates it, some matter of degree, and there is

no constitutional difficulty in the way of enforcing

the criminal provisions of the Sherman Anti-

Trust Act on the ground of uncertainty as to the

prohibitions.”’

Whenever the law draws a line, there will be cases

very near each other on opposite sides. The precise

course of the line may be uncertain, but no one can

come near it without knowing that he does so, if he

thinks, and if he does so, it is familiar to the criminal

law to make him take the risk. Nash v. United States,

supra; United States v. Wurzbach, 280 U.S. 396, 399

(1930). One who goes perilously close to an area of

proscribed conduct shall take the risk that he may cross

18

the line. Boyce Motor Lines, Inc. v. United States, 342

U.S. 337, 340.

In summary, on the question of scienter, the Georgia

law requires and the jury was instructed that the State

must prove, as a bare minimum, that the appellant had

knowledge of facts which would put a reasonable and

prudent person on notice as to the suspect nature of the

material. No more has ever been required. “Notice of

its contents” is required by Rosen v. United States,

supra; “in some manner aware’ was sufficient in

Mishkin v. New York, supra; “reason to know” was

sufficient in Ginsberg v. New York, supra; “be aware of

the character of the matter” was sufficient in Kuhns v.

California, supra; eyewitness testimony that the appel-

lant viewed the film is not necessary, Smith v. California,

supra; and proof of knowledge of the legal status of

the material is not required, Hamling v. United States,

supra.

IV.

THE TRIAL COURT DID NOT ERR IN AD-

MITTING INTO EVIDENCE THE DEVICES

SEIZED BY THE OFFICERS AT THE TIME

APPELLANT WAS ARRESTED.

On August 6, 1975, officers proceeded to the Roswell

Road Adult Book Store located in the City of Atlanta,

Fulton County, Georgia, where they purchased from

the appellant two magazines, Cock Hungry and Raw

Passion, and determined that in plain view, on display

for sale in the store were numerous sexual devices pro-

scribed by Section 26-2101(c) of the Criminal Code of

Georgia. The officers testimony left no doubt that this

was a public place, replete with books and magazines,

ee eee

EE

19

mini-movies, and peep shows which depicted and

described explicit sexual acts.

The sexual devices on public display for sale, in open

and plain view of everyone who entered the store, were

seized by the officers. Nothing else was seized.

The appellant contends that the devices seized are

protected by the First Amendment to the Constitution

and cites Roaden v. Kentucky, 413 U.S. 496 (1973) and

Lee Art Theatre v. Virginia, 392 U.S. 636 (1969) as

cases controlling in the seizure of such devices. Needless

to say, we disagree. Both the cases cited are cases deal-

ing with the seizure of motion picture films from com-

mercial theaters. We would agree that motion picture

films, books, and magazines would not be subject to

seizure under the same set of facts and circumstances

as those in this case in which the devices were seized.

There is a vast difference in devices designed and/or

marketed as useful primarily for the stimulation of

human genital organs on the one hand, and motion

picture films, books, and magazines on the other; and

on the one hand, to seize films, books, and magazines

without a prior judicial determination would be a prior

restraint of material protected by the First Amend-

ment of the United States Constitution under the pres-

ent decisions of our appellate courts, while on the

other hand, the dissemination of material described in

Code Section 26-2101(c), prohibited by Code Section

26-2101(a), would not be, and was not in this case, a

prior restraint of material protected by the First

Amendment.

The Supreme Court of the United States in Roaden v.

Kentucky, supra, recognized and made a distinction in

making a determination as to reasonableness of the

seizure, 413 U.S. 496, 501; 93 S. Ct. 2796, 2800 (1, 2).

20

The devices seized, not afforded protection under the

First Amendment of the Constitution, are declared to

be contraband under the provisions of Code Section

26-2104, ‘and therefore subject to seizure under the

same rules as other contraband such as illegal drugs,

stolen merchandise, and other fruits of crime.

What a person knowingly exposes to the public, even

in his own house or office, is not subject to Fourth

Amendment protection. Katz v. U.S., 389 U.S. 347, 351;

88 §. Ct. 507, 511 (1967).

Contraband items in plain view of police officers, in

a place where the officers have a right and are autho-

rized to be, are subject to and may be seized without a

search warrant. Coolidge v. New Hampshire, 403 US.

443; 91 S. Ct. 2022 (1971); Harris v. United States,

390 U.S. 234, 236; 88 S. Ct. 992, 993 (1968).

The devices seized were in plain view of the officers

while the officers were in a lawful position to view the

items seized, and for that and the foregoing reasons as-

serted, no warrant was necessary to make a lawful

seizure.

V.

THE QUESTION OF OBSCENITY VEL NON

WAS NOT RAISED BY APPELLANT IN THE

COURT OF APPEALS OF GEORGIA NOR WAS IT

PASSED UPON.

The appellant failed to challenge in the Court of

Appeals of Georgia the sufficiency of the evidence to

sustain the finding by the trial jury that the materials

were obscene. See the opinion in this case by the Court

of Appeals of Georgia, page A.1 of appendix to appel-

a en

Re ee en “

21

lant’s Jurisdictional Statement, where the Court wrote:

“Appellant appeals his conviction for a violation of

the illegal sale of pornographic paraphernalia, a

misdemeanor, and his sentence to confinement for

12 months. He does not raise any issue as to the

sufficiency of the evidence, but restricts his enumera-

tions of error to the denial of numerous pretrial

motions, and a related charge of the Court.”’ (Em-

phasis added)

The Supreme Court of Georgia in Dyke v. The State,

232 Ga. 817, 821, and the Court of Appeals in Ballew v.

The State, 138 Ga. App. 530, recognize that they are

not bound to approve the jury’s finding and that an

independent review must be made to determine the

constitutional fact of obscenity when the question is

invoked on appeal. In this case, the appellant chose not

to invoke appellate review in the Court of Appeals of

Georgia on the question of obscenity vel non, and by

making that choice he has waived appellate review of

the question. Ordinarily, this Court does not decide

questions not raised or resolved in the lower court. Jt is

only in exceptional cases carried to it from the federal

courts that questions not pressed or passed upon below are

reviewed. Youakim v. Miller, __.. U.S. ___.,, 96 S.. Ct.

1399 (1976). (Emphasis added)

22

CONCLUSION

For all the foregoing reasons, the appeal should be

dismissed; or in the alternative, the judgment of the

Court of Appeals of Georgia should be affirmed.

Respectfully submitted,

LEONARD W. RHODES

Assistant Solicitor General

ANDREW J. HAIRSTON

Assistant Solicitor General

Attorneys for Appellee

53 State Court Building

160 Pryor Street, S.W.

Atlanta, Georgia 30303

(404) 572-2911

CERTIFICATE OF SERVICE

I have this day caused to be mailed three copies of

the within motion, first class postage prepaid, to Robert

Eugene Smith, Esq., 1409 Peachtree Street, N.E.,

Atlanta, Georgia 30309.

This day of January, 1978.

LEONARD W. RHODES

Counsel for Appellee

APPENDIX A

IN THE CRIMINAL COURT OF FULTON COUNTY

STATE OF GEORGIA

THE STATE OF GEORGIA, )

Plaintiff,

a | CASE NO, 156435

EARNEST ROBINSON: CASE NO. 147263

EARNEST ROBINSON: CASE NO. 156440

JOHN PEAVY; > GASE NO. 156432

DAVID BURNETTE: CASE NO. 156433

ELIZABETH GREEN; and CASE NO. 156431

JAMES SHAW,

Defendants. |

SECOND MOTION TO DISMISS OR IN THE

ALTERNATIVE DEMUR

Defendants move the Court to dismiss the above

cases on the grounds that a five-person jury is used to

determine innocence or guilt, and under the Sixth and

Fourteenth Amendments of the United States Consti-

tution this is constitutionally invalid since the lowest

number of jurors allowed in a criminal trial is six.

Further, Art. VI, Sec. XVI, para. I, of the State Con-

stitution (Code 2-5105) and Georgia L. 1890-1891, Vol.

2, p. 935, Georgia L. 1935, 498, are unconstitutional on

their face and as applied, as said laws permit a five-

person jury and therefore deny the Defendants a six-

person jury trial under the Sixth and Fourteenth

Amendments.

la

2a

WHEREFORE, Defendants pray that their Second

Motion to Dismiss be sustained.

GLENN ZELL

Attorney for Defendants

Suite 822, 15 Peachtree St., N.E.

Atlanta, Georgia 30303

(404) 524-6878

William v. Florida, 399 U.S. 78, 136

Baldwin v. New York, 399 U.S. 60