Motion to Dismiss or Affirm — Poe v. North Carolina

Supreme Cour. US.

FILED

eR é 28e

IN THE SUPREME COURT OF THE UNITED STATES J

'

_——— oe oe —-—*

October Term, 1979

ws, 71-43 Pt

JERRY LEANDER POE, Appellant

Ve

THE STATE OF NORTH CAROLINA, Appellee

APPEAL FROM THE SUPREME

COURT OF NORTH CAROLINA

MOTION TO DISMISS APPEAL

Or, in the Alternative

TO AFFIRM JUDGMENT

ae

RUFUS L. EDMISTEN

Attorney General

JAMES PEELER SMITH

Assistant Attorney General

COUNSEL FOR THE STATE

OF NORTH CAROLINA

Post Office Box 629

Ruffin Building

Raleigh, North Carolina 27602

Telephone: (919) 733-7188

Pe

INDEX

Jurisdiction ieee en: sok ete ete ee

Statement a ed eer a a eee aoe ge

Argument ie ee oe eee eet ee ee Te

Conclusion Care eiee sp rw Pee we ow ae

TABLE OF AUTHORITIES

Cases: -

DOE v. BOLTON, 410 U.S. 179 (1973)

EISENSTADT v. BAIRD, 405 U.S. 438 (1972)

FERGUSON v. SKRUPA, 372 U.S. 726 (1963)

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965)

PARIS ADULT THEATER I. v. SLAYTON, 413 U.S.

49 (1973) . . . - . . . . . . . . . . .

PLANNED PARENTHOOD OF CENTRAL MISSOURI v.

DANFORTH, 428 U.S. 52 (1976) ..... -»

ROE v. WADE, 410 U.S. 113 (1973) a ea le re

ROSE v. LOCKE, 423 U.S. 48 (1975) .....

STANLEY v. GEORGIA, 394 U.S. 557 (1969)

STATE v. POE, 40 N.C.App. 385, 252 S.E.2d 843

(1979), cert. denied 298 N.C. 303, 259

§.£.24 304 (1979) . . . . . . . . - . .

WHALEN v. ROE, 429 U.S. 589 (1977) “iv we ea

Statutes:

North Carolina General Statute § 14-177 ..

28 U.S.C. § 1257(2) bowel be ee 6 8

Other Authorities:

Rule 16(1)(b), Rules of the Supreme Court of

the United States hates ae Shoe eh we we Oo

Rule 16(1)(c), Rules of the Supreme Court of

the United States eae baa eee eee of

The New England Journal of Medicine, "Sexual

ransmission of Hepatitis A in Homosexual

Men," Lawrence Corey, M.D. & King K. Holmes,

Ph.D., 1980, 302: 435-438 ....+42446-.

M.D.,

4,

APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA

MOTION TO DISMISS APPEAL

Or, in the Alternative

TO AFFIRM JUDGMENT

Pursuant to Rule 16(1)(b) of the Rules of the Supreme

Court of the United States, appellee moves the Court to

dismiss the appeal herein for the reasons and on the grounds

hereinafter set forth.’ In the alternative appellee moves

the Court pursuant to Rules 16(c) of she Rules of this Court

to affirm the judgment of the Supreme Court of North Carolina,

and the opinion of the North Carolina Court of Appeals.

JURISDICTION

This is a direct appeal under 28 U.S.C. § 1257(2) from

the Supreme Court of North Carolina, denying appellant's

appeal upon a'’purported assertion of a substantial question

arising under the Constitution of the United States, and

simultaneously denying appellant's motion for discretionary

review. The Order of the North Carolina Supreme Court. is

published at 298 N.C. 303, 259 S.E.2d 304 (1979). The Court

of Appeals in an opinion published in 40 N.C.App. 385, 252

S.E.2d 843 (1979), affirmed the conviction for crime against

nature under N.C.G.S. § 14-177. Appellant challenges the

constitutionality of that criminal statute as it was

applied to him.

STATEMENT

Poe was indicted for second degree rape and crime

against nature. His case was tried to a jury at the January

30, 1978, Criminal Session of the Superior Court for Durham

County, North Carolina. At the close of the State's

evidence, the trial court dismissed the rape charge. The

jury returned a verdict of guilty of crime against nature

and the Court imposed a sentence of five years imprisonment.

At the trial, defendant moved for an instructed verdict

of not guilty on the basis that all the evidence showed

that the act of fellatio with which he was charged was

committed with the voluntary consent of the prosecutrix.

The trial court judge denied the motion. Defendant then sought

instructions to the effect that if the jury should find

that the prosecutrix voluntarily consented to perform the

act of fellatio upon him, it should return a verdict of

not guilty. The requested instructiop was denied. When

the jury returned a verdict of guilty of crime against

nature, Gefendant moved to set aside the verdict and to arrest

judgment on the ground that the evidence showed a consensual

act of fellatio committed by adults of the opposite

sex in private and therefore within the claimed zone of

privacy protected by the Fourteenth Amendment of the

United States Constitution. This was also denied and defendant

entered notice of appeal to the North Carolina Court of

Appeals.

The State's evidence at the trial showed and defendant

admitted on the stand that an act of fellatio had occurred.

The State and defendant differed though regarding the

circumstances surrounding the act. The State's evidence

tended to show that on November 4, 1977 Poe was riding

in his car in Durham, North Carolina. He saw the prosecuting

witness walking down a street in that city and he pulled his

car over to the side of the road. (R pp 8, 9, 21, 22)

She testified that he called her over to the car and

asked her if she wished to make fifty dollars. She

responded negatively but saw that he had a small black

pistol under his coat. She said that he did not take

it out from under his coat nor did he point it at her. (R pp 8,9)

She did however get in the car and they rode to an old abandoned

hoisery mill or warehouse in Durham. He parked the car and

they went inside. (R pp 9, 22) There she committed the

act of fellatio upon him. (R pp 10, 1l, 22) The

prosecuting witness did not appear to be very intelligent.

Poe called as a witness a psychiatrist, Dr. Andres

Pumariega who testified that it was his impression that the

proesecutrix did suffer from paranoid schizophrenia and that

there was a possible sexual dimension to her paranoia.

(R pp 25-26) In ans’ aaeuie the prosecutrix testified that

narful of the defendant and that she was afraid

he might hurt her. She testified that Poe put his penis

in her mouth; and that when he was through with her, he left

her there at the warehouse. She copied down his license plate

er and reported the incident to the police. (R pp 10-12)

Poe presented evidence that the prosecutrix had a

reputation for promiscuity. Poe himself took the stand and

gave his version of the incident. He claimed that it was

the prosecutrix who initiated the encounter by flagging him

down on the street and that she suggested that she would

perform fellatio upon him since she was in her monthly period.

(R p 22) He admitted taking her to the warehouse where

she performed the act of fellatio upon him, (R p 22) but

he denied using any force against her, threatening her,

and having a gun on him. (R p 23) He said the act had

continued for about two minutes when he heard a car outside

the building. He pushed her away, zipped up his pants and

went out to his car. She followed him and jumped in the back

of his car. He told her to get out of the car, and she

complied, slamming the door as she exited the vehicle.

(R p 22)

ARGUMENT

This case presents no substantial question warranting

plenary consideration by this Court, for the following reasons:

This Court has never held that the right of privacy in

sexual relations extends beyond the bounds of marriage. In

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965), it was held that

the State could not outlaw the use of contraceptive devices

by -husband and wife because the right of privacy found in the

Constitution precluded such an intrusion by the State into

the marital bedroom. The opinion of the Court and the

concurring opinions are replete with references to the

marital relationship. See e.g. 381 U.S. at 480, 481, 485,

486, 487, 495, 496, 503 and 505. The Court in GRISWOLD did not

purport to find in the Constitution a barrier to governmental

regulation of all sexual relationships. Mr. Justice Goldberg

in his concurring opinion emphasized the decision as announced

--in no way interferes with a State's proper regulation

of sexual promiscuity or misconduct. As my Brother

Harlan so well stated in his dissenting opinion in POE

v. ULLMAN, supra, 367 U.S. [497] at 553, 6 L.Ed.2d at

1025,

"Adultry, homosexuality and the like are sexual

intimacies which the State forbids...but the

intimacy of husband and wife is necessarily an

essential and accepted feature of the institution

of marriage, an institution which the State not

only must allow, but which always and in every age

it has fostered and protected. It is one thing

when the State exerts its power either to forbid

extra-marital sexuality...or to say who may marry,

but it is quite another when, having acknowledged

a marriage and the intimacies inherent in it,

it undertakes to regulate by means of criminal

law the details of that intimacy."

381 U.S. at 498, 499,

EISENSTADT v. BAIRD, 405 U.S. 438 (1972) did not extend

the right of privacy in sexual matters to unmarried persons.

Rather the Court in that decision held that "...[a person's]

decision to bear or beget a child" was protected by the

constitutional right of privacy. 405 U.S. at 453. The opinion

deals with procreation specifically, not sexual relations

generally, and holds that "(i]t would be plainly unreasonable

to assume that Massachusetts has prescribed pregnancy and the

birth of an unwanted child as punishment for fornication."

405 U.S. at 448. Thus the Court has held nothing more

than that the right of privacy protects the individual in taking

precautions to prevent pregnancy.

ROE v. WADE, 410 U.S. 113 (1973), DOE v. BOLTON, 410

U.S. 179 (1973), PLANNED PARENTHOOD OF CENTRAL MISSOURI v.

DANFORTH, 428 U.S. 52 (1976), and other abortion cases in

no manner support Poe's contention that the constitutional

right of privacy precludes state regulation of sexual

activity between consenting heterosexual adults. Those

cases guite simply define to what extent the State may

regulate a woman ecision to terminate her pregnancy and the

manner in which the pregnancy may be.terminated. Mr.

Justice Blackmun in ROE v. WADE, supra at 152, 153, lists those

cases which have touched upon the right of privacy and

demonstrates that the Court has never enunciated a broad

right of privacy, protecting all intimate relationships.

Nor is the right of privacy a talisman which when displayed

bars all government action with respect to the activity in

question. Cf. WHALEN v. ROE, 429 U.S. 589, 597 (1977),

in which Mr. Justice Stewart stressed in his concurring

opinion at 607, 608 that “there is no ‘general

constitutional "right to privacy." ...[T]he protection of

a person's general right to privacy is, like the protection

of his property and of his very life, left largely to

the law of the individual state.' ...[KATZ v. UNITED STATES,

389 U.S.) at 350-351."

STANLEY v. GEORGIA, 394 U.S. 557 (1969), has been cited

for the broad proposition that in the privacy of his home, a man

may do some things which if performed publicly would be illegal.

a general proposition this statement is of course true.

However, the precise holding of the case is much narrower.

As Mr. Justice Stewart pointed out in his concurring

opinion in WHALEN, supra, 429 U.S. at 609, notwithstanding

STANLEY's references to the right to read pornographic

literature in the privacy of one's home, that case “simply [holds]

that the First Amendment -- as made applicable to the States

by the Fourteenth -- protects a person's right to read what

he chooses in circumstances where that choice poses no

threat to the sensibilities or welfare of others...

See alsa PARIS ADULT THEATER I v. SLAYTON, 413 U.S. 49

(1973), in which Mr. Chief Justice Burger noted the

limited nature of the right of privacy, which "encompasses

and protects the personal intimacies of the home, the

family, marriage, motherhood, procreation, and child

rearing.” 413 US. at 65.

This Court has held that a state criminal statute

using the language “crime against nature" does not violate

the Constitution even if construed by. State courts broadly

enough to include the sort of sexual conduct in which Poe

engaged. WAINWRIGHT v. STONE, 414 U.S. 21 (1973). The Court

has also.meld that a person may be prosecuted for performing

or engaging in certain sexual acts which may reasonably

have been understood to be prohibited by and included within |

a statute using the term "crime against nature." This is

permissible even though no previous appellate court decision

has specifically found the act in question to be covered by

state statute. ROSE v. LOCKE, 423 U.S. 48 (1975).

Poe seems to argue that the right of privacy includes

not only the right of two consenting adults of opposite

sex to engage in sexual relations, but also to engage in

whatever sexual act they see fit as long as they do so in

secrecy. He further contends that this right is a fundamental

one that can only be invaded by the State upon a showing of

a compelling interest. As demonstrated above, these

contentions are not supported by the decisions of this Court.

In EISENSTADT v. BAIRD, supra, which declared that the right

of privacy did include an unmarried woman's right to obtain

contraceptives, the Court held that the right was not among

those so fundamental that the State must prove a compelling

interest in order to intervene. 408 U.S. 447 n 7. Moreover,

in ROSE v. LOCKE, supra, 423 U.S. at 50 n 3, the Court

expressly declared that no fundamental right was involved

in a prosecution for an act of cunnilingus. If no

fundamental right was involved in that act, there is

certainly none in the act of fellatio.

Poe's claim that the consent of the partner provides

a constitutional shield to engage in acts otherwise forbidden

must also fail.» Mr. Chief Justice Burger, writing for the

Court in PARIS ADULT THEATER I. v. SLAYTON, supra, answered

this contention: "Our Constitution establishes a broad range

of conditions on the exercise of power by the States, but for

is to say that our Constitution incorporates the proposition

that conduct involving consenting adults only is always beyond

state regulation, is a step we are unable to take." 413 U.S. at

68. Furthermore, this Court has summarily affirmed a three-

judge district court opinion holding constitutional a Virginia

statute making sodomy a crime even when the act was engaged in

by two consenting adult males in private. DOE v. COMMONWEALTH

ATTORNEY, 425 U.S. 901 (1976), aff'g 403 F.Supp. 1199 (E.D. Va.

1975).

If the act of sodomy may lawfully be forbidden between

consenting males, a consensual act of fellatio may also be

forbidden between an unmarried adult male and an unmarried

adult female. The argument that it is a denial of equal

protection to subject an unmarried man and woman to criminal

prosecution for conduct which cannot be pseisineaee ses committed

by a married couple in private is wholly specious. bh 3

is the marriage which enjoys protection; the sexual conduct

in and of itself is simply secondary.

The fact that public opinion may not conform with the statutory

proscription is a matter for the legislature, not the courts.

See FERGUSON v. SKRUPA, 372 U.S. 726, at 730, and Mr. Justice

Stewart's dissenting opinion in GRISWOLD v. CONNECTICUT,

supra, 381 U.S. at 527. However, if even beyond the historical

revulsion felt by society at the sexual acts included

under the term "crime against nature" there is also medical

evidence that such conduct may be conducive to the spread of

disease. See “Sexual Transmission of Hepatitis A in

Homosexual Men," The New England Journal of Medicine, 1980; 302:

435-438.

As Mr. Justice Douglas noted in GRISWOLD v. CONNECTICUT,

381 U.S. at 485, 486: "Would we allow the police to search

the sacred precincts of marital bedrooms for telltale signs

of the use of contraceptives? The very idea is repulsive

to the notions of privacy surrounding the marriage relationship."

Thus, that which may be performed within the bonds of

marriage may lawfully be banned outside of that protected

relationship.

CONCLUSION.

Por the foregoing reasons, either the appeal should be

dismissed or the opinion of the North Carolina Court of

Appeals should be affirmed.

: hespocktur iy submitted,

RUFUS L. EDMISTEN

Attorney General

James Peeler Smith

Assistant Attorney General ~.

COUNSEL FOR THE STATE OF

NORTH CAROLINA

Post Office Box 629

Ruffin Building

Raleigh, North Carolina 27602