Opposition — Keefer v. California

x

IN THE

SUPREME COURT |

_—

' #~ Supreme Court, U. $i

OF THE UNITED STATES

MICHAEL R&DAK, JR., CLERK

bec il

‘tT FILED

1978

No. 78-530

ROLAND DARYL WICKMAN,

Petitioner,

V

STATE OF GEORGIA,

Respondent.

On Petition For Writ of Certiorari

To The Georgia Court Of Appeals

BRIEF FOR THE RESPONDENT IN OPPOSITION

Please serve:

DARYL A. ROBINSON

132 State Judicial Bldg.

40 Capitol Square, S.W.

Atlanta, Georgia 30334

(404) 656-3349

ARTHUR K. BOLTON

Attorney General

ROBERT S. STUBBS, Il

Executive Assistant

Attorney General

DON A. LANGHAM

First Assistant

Attorney General

JOHN C. WALDEN

Senior Assistant

Attorney General

HARRISON KOHLER

Assistant Attorney General

DARYL A. ROBINSON

Assistant Attorney General

INDEX

QUESTIONS PRESENTED .... +. «6 © «© « «

STATEMENT OF THE CASE ...cs-e-eceee

REASONS

A.

FOR NOT GRANTING THE WRIT

THE DEVICES SEIZED FROM

PETITIONER DID NOT CONSTITUTE

EXPRESSION PROTECTED UNDER THE

FIRST AND FOURTEENTH AMENDMENTS,

AND THE STATE MAY REGULATE

DEVICES DESIGNED OR MARKETED

PRIMARILY FOR THE STIMULATION

OF HUMAN GENITAL ORGANS ....

THE JURY INSTRUCTION ON THE

KNOWLEDGE REQUIRED FOR CONVICTION

UNDER GA. CODE ANN. § 26-2101

WAS CONSTITUTIONAL .......

THE SEIZURE OF THE SEXUAL

DEVICES BY POLICE OFFICERS

FROM PETITIONER WAS

CONSTITUTIONAL . ..... 5 « «

CONCLUSION . . . . * . . . . . . . . . .

CERTIFICATE . . . . 7 . . . . a . . . . 7

13

14

TABLE OF AUTHORITIES

Allen v. Georgia, U.S. P

Page

24 Crim. L. Rptr. 4037 (1978). ..... 8

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

735, 132 Cal. Rptr. 725 (1976). .

Ginsberg v. New York, 390 U.S. 629,

(1968) . 7 . 7 7 . - . . 7 . - . . .

Griswold v. Connecticut, 381 U.S.

Sve thee ss 6b 6 64 oe

Hamling v. United States, 418 U.S. 87

(1974) . - . . . . . . . . . . 7 .

Harris v. United States, 390 U.S. 234

(1968) . . . . . . .* . . .* . . . .

Katz v. United States, 289 U.S. 347

(1967) . 7 . . . . . . . .

Kuhns v. California, 431 U.S. 973

(1977) . . 7 . 7 . . . 7 . . 7

Miller v. California, 413 U.S. 15

(1973) . . . . o . . . . . . . . . i

Mishkin v. New York, 383 U.S. 502

(1966) . - - . - . - . 7 7 - . . .

Paris Adult Theatre I v. Slaton,

SLs Gaels OF (h0ta) «(0 & s.s

People v. Clark, 304 N.Y.S.2d 326

(1969) . . . . . . . . . . . . . .

ii.

10

9, 10,

Roaden v. Kentucky, 413 U.S. 496

(1973). . . . . . . . . . . . .

Rosen v. United States, 161 U.S.

(1896) . . . . . . . . . . .

Sewell v. Georgia, U.S. P

56 L.Ed. d 1978). . . . . .

Simpson v. Georgia, U.S.

24 Crim. L. Rptr. 4033 (1978)

Stanley v. Georgia, 394 U.S. 557

(1969). 7 . . . 7 . . . o .

Teal v. Georgia, 394 U.S. 557

(1969) . . . . . . . . . . .

United States v. Gentile, 211 F.Supp.

383 (D. Md. 1962)...

United States v. Orito, 413 U.S.

(1973). . . . . . . . . . .

Wickham v. State, 239 Ga. 844, 239

S.E.2d 28 (1977) .

Wickham v. State, 145 Ga. App. 680,

244 S.E.2d 589 (1978) ...

Wood v. Georgia, U.S. 24

Crim. L. Rptr. 4037 (1978).

STATUTES CITED

18 U.S.C. § 1461 oe ee ee ae pee

18 U.8.C. § 1462 Loe) ee 16 ce

Ga. Code Ann. § 26-2101 . . .

N.Y. Penal Law § 1141 ..... .»

iii.

12

- 9, ll

passim

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO. 78-530

ROLAND DARYL WICKMAN,

Petitioner,

Vv.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE GEORGIA COURT OF APPEALS

BRIEF FOR THE RESPONDENT IN OPPOSITION

QUESTIONS PRESENTED

is

Did the devices seized from Petitioner

constitute expression protected under the

First and Fourteenth Amendments, and may

the State regulate devices designed or

marketed primarily for the stimulation of

human genital organs?

a

Was the jury instruction on the know-

ledge required for a conviction under Ga.

Code Ann. § 26-2101 constitutional?

3.

Was the seizure of sexual devices by

police officers from Petitioner constitu-

tional?

STATEMENT OF THE CASE

The facts of this case are widteputes.—~’

On July 15, 1975, Ira W. Brown, an investigator

in the Fulton County Solicitor's Office, entered

the Houston Street News store in Atlanta,

Georgia. (T. 8) ._2 Investigator Brown,

accompanied by other law enforcement officers,

purchased two books entitled Diary of a Young

Man Coming Out and Calle from Petitioner

Roland Daryl Wickman. (T. 10-11).

The officers then identified themselves

and placed Wickman under arrest. (T. 11).

The officers then seized paraphernalia out

of a transparent glass showcase in the store.—3/

(R. 3, T. 16-21). 4/

1/ Petitioner Roland Daryl Wickman neither

testified nor presented other evidence

at his trial.

_2/ TT. refers to the transcript of Petitioner's

trial in the Criminal Court of Fulton

County, Georgia.

_3/ The officers seized two artificial

vaginas, one artificial vagina and anus,

three slip-on dildos, three dildos with

straps, one dildo with crank, six dildos

with attached suction devices, one dildo

with a strap and vibrator, one vibrator

with attached sleeve, one package containing

two joined dildos and one super pumpette.

_4/ R. refers to the appellate record prepared

by the Clerk of the Criminal Court of

Fulton County, Georgia.

- j=

Petitioner was charged with distributing

obscene material in violation of Ga. Code

Ann. § 26-2101. (R. 3). He was tried and

convicted on November 22, 1976, and sentenced

to twelve months imprisonment and a $5,000.00

fine. (R. 18-19).

He appealed to the Supreme Court of

Georgia which held Ga. Code Ann. § 26-2101

to be constitutional and then transferred

the case to the Georgia Court of Appeals.

See Wickham v. State, 239 Ga. 844,° 239 S.E.2d

28 (1977). The conviction was affirmed by

the Georgia Court of Appeals in Wickham v.

State, 145 Ga. App. 680, 244 S.E.2d 589 (1978);

the Supreme Court of Georgia denied the

petition for writ of certiorari.

REASONS FOR NOT GRANTING THE WRIT

A. THE DEVICES SEIZED FROM PETITIONER

DID NOT CONSTITUTE EXPRESSION

PROTECTED UNDER THE FIRST AND

FOURTEENTH AMENDMENTS, AND THE

STATE MAY REGULATE DEVICES

DESIGNED OR MARKETED PRIMARILY

FOR THE STIMULATION OF HUMAN

GENITAL ORGANS.

The issue of whether sexual devices,

such as dildos, are expression protected by

the First and Fourteenth Amendments, was

presented to this Court on appeal and dis-

missed for want of a substantial federal

question. See Sewell v. Georgia, U.S.

, 56 L.Ed.2d 76 (1978); Simpson v.

Georgia, U.S. , 24 Crim L. Rptr.

4033 (1978).

The Georgia Court of Appeals did not

base its affirmance of Petitioner's conviction

on the findings that magazines seized from

Petitioner were obscene, for the publications

seized were not transmitted to the Appellate

Court. Wickham v. State, supra, 145 Ga. App.

at 681. Petitioner's conviction was affirmed

because the jury could lawfully have been

convinced that the items of sexual parapher-

nalia were obscene. Id.

Artificial sexual organs or extensions

have been held to be devices designed and

adapted for indecent or immoral use under

18 U.S.C. § 1462 and thereby obscene.

United States v. Gentile, 211 F.Supp. 383

(D. Md. 1962). The language in 18 U.S.C.

§ 1462 has been held to be constitutional.

ote

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

A state court has applied an obscenity

statute to artificial penises. People v.

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

Ga. Code Ann. § 26-2101 does not encom-

pass conduct that is constitutionally pro-

tected 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 (1969). See also Paris Adult

Theatre I v. Slaton, 413 U.S. 49 (1973);

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

Petitioner alleges that the standards

or guidelines set forth in Miller v. California,

413 U.S. 15 (1973), used in determining

obscenity in press materials, apply to the

devices described’ and prohibited by § 26-210l(c).

However, the Miller guidelines 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 § 26-210l(c) are neither

speech nor press materials and are, therefore,

not protected by the First Amendment.

Petitioner has compared the Georgia

obscenity statute with that dealt with by

this Court in Griswold v. Connecticut, 381

U.S. 479 (1965). However, in Griswold, this

Court dealt with statutes prohibiting the

use of contraceptives and recognized a dis-

tinction between "forbidding the use of

contraceptives rather than regulating their

manufacture or sale." Id. at 485.

The Georgia statute does not blanketly

prohibit the use._of devices described in

§ 26-210l(c). There is an exception whereby

persons, married or single, can avail them-

selves of such devices. See Ga. Code Ann.

§ 26-210l(e). The procedure required in

this exception is similar to that required

for the dispersing of most prescription drugs,

including those for birth control.

The devices described in Ga. Code Ann.

§ 26-210l1(c) do not constitute expression

protected by the First and Fourteenth

Amendments, and the State of Georgia may

lawfully regulate these devices.

B. THE JURY INSTRUCTION ON THE

KNOWLEDGE REQUIRED FOR A

CONVICTION UNDER GA. CODE ANN.

§ 26-2101 WAS CONSTITUTIONAL.

An essential element in the crime of

distributing obscene materials in Georgia

is that the accused knows the "obscene

nature" of the material. Ga. Code Ann.

§ 26-210] (a). Knowing is defined as either

actual knowledge of the obscene contents

or "knowledge of facts wihich would put a

reasonable and prudent person on notice as

to the suspect nature of the material."

Id. At Petitioner's trial, the judge

charged the jury concerning these principles.

(7. Si-$2).

Previous appeals that such a charge

is unconstitutional have already been

dismissed by this Court for want of a

substantial federal question. See Sewell v.

Georgia, U.S. _, 56 L.Ed.2d 76 (1978);

Teal v. Georgia, __ U.S. , 56 L.Ed.2d

79 (1978); Simpson v. Georgia, ___ U.S. ,

24 Crim. L. Rptr. 4033 (1978). Also, this

Court has recently denied writs of certiorari

concerning this issue. See Wood v. Georgia,

__ U.S. __, 24 Crim L. Rptr. 4037 (1978);

Allen v. Georgia, U.S. , 24 Crim. L.

Rptr. 4037 (1978). inte

The trial court's charge is consistent

with a line of cases on the question of

scienter in obscenity cases dating back to

the year 1896 when this Court held that 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 the [obscenity] statute

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, 41 (1896).

The Georgia statute is similar to New

York statutes dealt with by this Court in

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

and Ginsberg v. New York, 399 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 innocent but calculated

purveyance of filth which is

exorcised ... ." Mishkin v.

New York, supra at 510. See

Ginsberg v. New York, supra

at 644.

Section 26-2101 of the Georgia Code

required "knowledge 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 character and content

of the material.

Neither Mishkin nor Ginsberg required

actual knowledge of the obscenity of the

material. Both cases were reviewed and

followed in Hamling v. United States, 418

U.S. 87 (1974), where this Court construed

18 U.S.C. § 1461, and held:

"To require proof of a de-

fendant's knowledge of the

legal status of the materials

would permit the defendant to

avoid prosecution by simply

claiming that he had not P

brushed up on the law. Such

a formulation of the scienter ,

requirement is required neither

by the language of 18 U.S.C.

§ 1461 nor by the Constitution."

Id. at 123-24.

In the case of Kuhns v. California, 431

U.S. 973 (1977), this Court 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. 3a 735,

132 Cal. Rptr. 725, 737 (1976).

-10—<

Petitioner concedes that proof of scienter

may be made by circumstantial evidence. 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 circumstantial

evidence.

At Petitioner's trial, Georgia law

required and the jury was instructed that the

State had to prove, as a bare minimum, that

Petitioner 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" was 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 California v. Kuhns, supra; and proof of

knowledge of the legal status of the material

was not required. Hamling v. United States,

Supra.

elle

C. THE SEIZURE OF THE SEXUAL

DEVICES BY POLICE OFFICERS

FROM PETITIONER WAS CON-

STITUTIONAL.

It is undisputed that (1) the Houston

Street News store was open to the public,

(2) Petitioner was operating the store when

the officers entered, and (3) the sexual

devices were in plain view in a transparent

glass showcase.

What a person knowingly exposes to the

public, even in his own home or office, is

not subject to a Fourth Amendment protection.

See Katz v. United States, 389 U.S. 347, 351

(1967). Contraband items in plain view of

police officers, in a place where officers

have a right and are authorized to be, are

subject to seizure and may be seized without

a search warrant. Harris v. United States,

390 U.S. 234, 236 (1968). Since the sexual

devices were not books or films, which

have First Amendment protection, no warrant

was required for the seizure of the devices.

See generally, Roaden v. Kentucky, 413 U.S.

496, 501-02 1973)

The allegation that such a seizure

required prior issuance of a warrant has

already been rejected as not presenting a

substantial federal question. Sewell v.

Georgia, U.S. , 56 L.Ed.2d 76 (1978);

Teal v. Georgia, U.S. , 56 L.Ed.2d 79

; Simpson v. Georgia, U.S. ;

24 Crim. L. Rptr. 4033 (1978).

o12-

CONCLUSION

For the foregoing reasons the petition

for writ of certiorari should be denied.

Please serve:

DARYL A. ROBINSON

132 State Judicial

Building

40 Capitol Sq.,S.W.

Atlanta, Georgia 30334

(404) 656-3349

Respectfully submitted,

ARTHUR K. BOLTON

Attorney General

ROBERT S. STUBBS, II

Executive Assistant

Attorney General

ie A Om Gl an

DON A. LANGHAM

First Assistant ‘

Attorney General

(+ C. WALDEN 3

Senior Assistant

Attorney General

pn bibl.

HARRISON KOHLER”

Assistant Attorney General

-13-

CERTIFICATE OF SERVICE

I, Harrison Kohler, Attorney of Record

for the Respondent, and a member of the

Bar of the Supreme Court or the United

States, certify that in accordance with the

rules of the Supreme Court of the United

States, I have this day served three copies

of this Brief for Respondent in Opposition

upon the Petitioner by depositing three

copies of the Brief in the United States mail,

with proper address and adequate postage to:

Mr. Robert Eugene Smith

Attorney at Law

1409 Peachtree Street, N. E.

Atlanta, Georgia 30309

This day of November, 1978.

Alaeeserrs Kiklay

RRISON KOHLER ~%

alge