Petition — Gravett v. Maryland

Supreme Court brief1980

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nO U-060 ———

In The

ICT 8 1980

Supreme Qourt of the Unites, tates, JR., CLERK |

October Term, 1980

CALVIN ANDRE GRAVETT,

Petitioner,

VS.

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND

BURTON W. SANDLER

Attorney for Petitioner

Suite 600

28 Allegheny Avenue

Towson, Maryland 21204

(301) 821-6777

LUTZ APPELLATE PRINTERS, INC.

3207 ’ ; Cte

law and Financial Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

(201) 257-6850 (212) 840-9494. (215) 563-5587 (202) 783-7288

QUESTIONS PRESENTED

1. Where the constitutional question raised by a motion to

dismiss with respect to the enforcement of a penal statute is

asserted as a bar to prosecution, independent of evidentiary

consideration reaching guilt or innocence, may a trial court,

consistent with due process of law, and equal protection of law,

grant a motion to dismiss on proffered testimony and testimony

before proceeding to trial on a case, where the motion to dismiss

alleges in effect, a “defect in the institution of the prosecution”

and an unconstitutional application of the statute in violation of

constitutional rights guaranteed under the First, Fourth, Fifth

and Fourteenth Amendments?

TABLE OF CONTENTS

Page

Questions Presented ........eseeeeeesscescccceeeseeeees i

EE COONS «a ocsic cic cccepecscacswaeescnctewwns ve ii

SE COE 6c ccccnrdeccndccnecssessswneceee bans ii

Opinions Below .......ccceeeeeesscneccccesesesseseeeee l

EN, vices ccde.cd cevacesesssnss os etebeenasenhens 2

Constitutional and Statutory Provisions Involved ......... 2

Statement of the Case .........cccecccccccccccssscevens 2

How the Federal Questions Were Raised ..........+eee0- 6

Reasons for Granting the Writ:

I. The Maryland Court of Special Appeals reversed

and improperly decided the essential issue in the trial

court’s dismissal below and evaded the constitutional

issue, which is of critical importance to the guarantee

of due process of law and equal! protection of the law

guaranteed under the Fifth and Fourteenth

Amendments to the United States Constitution. .. 7

Le costed ad casdhes tes aebaenaueaneveen 11

TABLE OF CITATIONS

Case Cited:

Rodgers v. Alabama, 92 U.S. 226 .....sseeeeeeeseeeeees 7

iii

Contents

Page

Statutes Cited:

Be ae A, SR ren Sonn me epee rere rrr 2

Annotated Code of Maryland, Article 27:

OEE ira sp VARNES SO OhO dE cht cea ron bp eh WERAnD 6 cdeeee's 2, 6, 9

2 Ter ee Toe ee ee rT ree ere mS ea SC

United States Constitution Cited:

en I oe oa is ee win be Sebb b 8 Ok ae AO > Oe.

eh os bade wad en ae a

a el op epee ee abe 264 3%, i

Fourteenth Amendment ....cccccccsccccccces 2 6, se, 33

Rule Cited:

NCTE TRG TIOORMOIE) wicrldccdiesccdcevecsdcceseses 2, 11

APPENDIX

Appendix A — Opinion of Maryland Court of Special Ap-

IEAREARIIS Tyre ree ge Uae oF ear gs | Sao A nme eer Te Ce” Pema la

Appendix B — Maryland Court of Appeals’ Denial of Peti-

a eg Be Be. ee rer Pree 9a

Appendix C — Pertinent Constitutional, Statutory Provi-

sions and Maryland Rules Involved .................. 10a

Contents

Page

Appendix D — Motion to Dismiss in the Circuit Court for

Prince George’s County ..cccccccccccccccccccccsccce l4a

Appendix E — Transcript of Proceedings at Petitioner’s

Trial in the Circuit Court for Prince George’s County,

Maryland, September 24 and 25, 1979 ......eeeeeeees 2la

Appendix F — “Statement of Questions Presented” Ex-

cerpted from Petitioner’s Brief Before the Maryland Court

OF Bpecinl ABOORNS ooicc ccc eecceecccdesceccccccenes 58a

Appendix G — Petition for Writ of Certiorari to the Mary-

land Court of Appeals ....ccccccccccscccccccccccces 59a

No.

In The

Supreme Court of the United States

October Term, 1980

CALVIN ANDRE GRAVETT,

Petitioner,

vs.

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND

OPINIONS BELOW

Petitioner was arrested in September of 1979 on a statement

of charges and brought to trial in the Circuit Court for Prince

George’s County on the charge of “distributing obscene matter

in violation of Maryland Code, Article 27, Section 418.” He

contended, in a motion to dismiss, that there was a “defect in the

institution of his prosecution”, under the facts and circumstances

in his case by virtue of Article 27, Section 423 in addition to

other constitutional violations. The trial court granted

petitioner’s motion to dismiss the case and the State took an

appeal to the Court of Special Appeals of Maryland on

November 27, 1979. The Maryland Court of Special Appeals on

May 12, 1980 reversed the trial court in an unreported opinion

which is attached hereto as Appendix A. The Maryland Court of

Special Appeals reasoned that the trial court could not grant a

motion to dismiss alleging an unconstitutional application of a

statute on “proffered testimony.”

A petition for a writ of certiorari was timely filed by

petitioner herein to the Maryland Court of Appeals on June 18,

1980. The Maryland Court of Appeals, by written order, denied

the petition for a writ of certiorari on August II, 1980. The

order of denial is not reported and without opinion an set

out as Appendix B.

JURISDICTION

The judgment of the Court of Appeals of Maryland was

entered on August 11, 1980 and the judgment was thus final.

The jurisdiction of this Court is invoked under Title 18, U.S.C.A

§1257.

CONSTITUTICNAL AND STATUTORY PROVISIONS

INVOLVED

The pertinent provisions of the First, Fourth, Fifth and

Fourteenth Amendments to the Constitution of the United

States and the provisions of Maryland Code, Article 27, §§418,

423; Maryland Rule 736(a)(c)(f) are set forth in Appendix C

hereto.

STATEMENT OF THE CASE

Petitioner is an employee of a bookstore that makes

available to the adult public, magazines and film that depict or

described sexual conduct, which is presumptively protected

expression under the First Amendment to the United States

Constitution. Throughout the store where petitioner is

employed, there appeared signs stating the following:

“The material sold in this store is sold only for

scientific, educational, governmental or other

similar justification.”

At the cash register, where petitioner was seated, there

appeared a sign stating the following:

“The customer agrees that the material selected

by him or her is being purchased by him or her

for scientific, educational, governmental or other

similar justification.”

Article 27, Section 423 of the Annotated Code of Maryland

allows the possession of obscene material for scientific,

educational, governmental or other similar justification and

distribution pursuant to such justification.

On November 17, 1978, a police officer entered the store

where petitioner was employed and selected a film that was in a

box. He went to the cash register where petitioner was seated

and paid for the film. He did not have an opportunity to view

the film until he left the store and returned to the police station.

He then obtained an arrest warrant for petitioner for

“distributing obscene matter in violation of Article 27, Section

418 of the Maryland Code.”

Petitioner was brought to trial in September of 1979 and in

his motion to dismiss, he objected to his prosecution and arrest,

alleging that the Maryland statute was unconstitutionally

applied to him under the facts and circumstances existing at the

time of arrest. As a result thereof, he argued that the statute was

being unconstitutionally applied to him in light of the State’s

knowledge of Article 27, Section 423, and other facts known to

the State at the time of his arrest and that his rights under the

First, Fourth, Fifth and Fourteenth Amendments to the United

States Constitution were being violated.

In support of the motion to dismiss, the petitioner proffered

the fact that the officer purchased the film for governmental

purposes and asked the court to take judicial notice of Article

27, Section 423. The petitioner also proffered that the State was

charged with knowledge of Article 27. Section 423 at the time the

petitioner was arrested, and the stateuent of charges was issued,

and that under the totality of the facts and circumstances the

State was aware of at the time of the petitioner's arrest, this was

an unconstitutional application of the statute and a violation of

his rights under the First, Fourth, Fifth and Fourteenth

Amendments and the motion to dismiss should be granted.

The prosecution argued that just because the defense will

argue boilerplate signs posted over the adult bookstore at wh ch

the petitioner works, that doesn’t make it a bona fide claim that

the films are being sold for a bona fide scientific, educational or

governmental literary purpose (33a).

At the conclusion of the argument by petitioner’s counsel

and the prosecution, the court requested testimony in connection

with the exemption portion of the statute (37a).

Petitioner advised the court that the testimony in

connection with the motion to dismiss and motion to suppress

would be overlapping and since there was a motion to suppress

before the court and a request for a suppression hearing, the

testimony requested by the court would be produced in the

suppression hearing.

Petitioner thereafter produced testimony from _ the

purchasing police officer that he purchased the film with

advanced funds of the police department (41a) and that he

purchased the film for use in his employment as a police officer

(42a). *

At the conclusion of the evidence, petitioner argued that the

purchase by the police officer was for governmental justification

and that pursuant to Article 27, Section 423, the statute was

being unconstitutionally applied to petitioner in violation of his

rights under the First, Fourth, Fifth and Fourteenth

Amendments to the United States Constitution under the facts

and circumstances in this case.

The trial court took under advisement, the motions to

dismiss and suppress, which raised the constitutional questions

hereinabove referred to and granted the motion to dismiss

stating as follows:

“The Court is of the opinion that the provisions

of Article 27, Section 423, extend an outright

exemption in this case, noting in passing that the

alleged obscene material was obtained by ©

Corporal Fickinger, a government agent, and the

Court rules that if the government had a right to

possess, someone had a right to deliver the

possession, and accordingly will grant the motion

to dismiss. This action by the Court leaves the

State free to proceed with any appeal at review

that they wish.

The question of the overbreadth or the vagueness

of the section, Section 423, relative to the

constitutional question will not have to be

decided by this Court. Although I might observe

in passing it would appear to this Court to be

vague and overreaching. However, the decision in

this case is predicated upon the fact that the

Court at this hearing declares that the defendant

is exempt in an evaluation of the testimony

proffered with respect to the motion to dismiss

and, accordingly, will dismiss the information.”

Timely appeal was taken by respondents and the trial court

was reversed on May 12, 1980 by the Court of Special Appeals

of Maryland. A timely petition for writ of certiorari was filed by

petitioner to the Maryland Court of Appeals and denied on

August 11, 1980.

HOW THE FEDERAL QUESTIONS WERE RAISED

The question of the unconstitutional application of Article

27, Section 418 to the petitioner under the facts and

circumstances known to the prosecution at the time of his arrest,

was raised by a motion to dismiss and oral argument, which was

heard by the circuit court judge before a trial on the merits. This

motion is printed in the appendix, infra, 14a-20a). The oral

argument alleging an unconstitutional application of the statute

appears at 26a, 3la of the appendix. The motion to dismiss was

granted by the trial court (56a). Excerpts from the transcript of

petitioner’s trial, which embody the ruling of the Circuit Court

of Prince George’s County upon the motion to dismiss are

printed in the appendix, infra, 56a. The State took an appeal to

the Court of Special Appeals of Maryland and petitioner

thereafter re-raised the issue of the unconstitutional application

of the statute. The “Statement of the Questions Presented”

contained in petitioner’s brief before the Maryland Court of

Special Appeals is printed in the appendix, infra, 58a. The

question was again raised in the Court of Appeals of Maryland

by way of a petition for a writ of certiorari and the questions

presented are printed in the appendix, infra, 60a. The rejection

of petitioner’s petition for a writ of certiorari is shown by the

order of the Court of Appeals of Maryland and is contained in

the appendix hereto at 9a.

REASONS FOR GRANTING THE WRIT

The Maryland Court of Special Appeals reversed and

improperly decided the essential issue in the trial court’s

dismissal below and evaded the constitutional issue, which is of

critical importance to the guarantee of due process of law and

equal protection of the law guaranteed under the Fifth and

Fourteenth Amendments to the United States Constitution.

The Maryland Court of Special Appeals overlooked the

essential basis on which the trial court dismissed the statement

of charges to wit:

“Article 27, Section 423, extended an outright exemption

and that if the government had a right to possess, someone had

a right to deliver the possession, and therefore the statement of

charges should be dismissed.” The Maryland Court of Special

Appeals in effect refused to deal with the federal question as to

the unconstitutional application of the statute, and its refusal to

deal with that question is a mere evasion. This Court has the

power to examine into the raising of the federal question, and if

it is convinced that the Maryland Court of Special Appeals’

refusal to deal with that question is a mere evasion, this Court’s

jurisdiction can be asserted. See Rodgers v. Alabama, 92 U.S.

226.

The trial court, considering petitioner’s argument as to the

unconstitutional application of the statute in violation of his

constitutional rights to due process and equal protection of the

laws in light of the exemption provided under Article 27, Section

423 of the Maryland Code, decided that constitutional issue on

the basis of argument and a police officer’s testimony, i.e., that

he purchased an obscene film for use in his employment as a

police officer with advanced funds from the police department

4la-42a). The trial court construed this evidence to mean the

material was purchased for governmental justification and

concluded that if the government had the right to possess,

someone had the right to deliver possession, pursuant to Article

27, Section 423. Accepting the argument that the State was

charged with knowledge of Article 27, Section 423 at the time of

the purchase and the arrest; the trial court concluded that there

was an unconstitutional application of the statute and dismissed

he case. The trial court commented on the federal question as to

She vagueness and overbreadth of the statute, which was raised

in the written motion to dismiss, but found it unnecessary to

decide that constitutional issue in light of its decision on the

unconstitutional application issue.

The opinion of the Maryland Court of Special Appeals did

not deal with the issue of the unconstitutional application of the

statute in light of Article 27, Section 423, but instead stated that

the trial court specifically declined to rule upon the

constitutionality of the statute facially. The court, in its opinion,

eluded to the fact that the trial court addressed itself only to the

statute’s application to the facts in this case. It is respectfully

suggested that this is what the trial court had to do in an effort

to determiae if there was an unconstitutional application of the

statute. This analysis was obviously used to evade the federal

uestion of nconstitutional application of the statute, which

was in fact decided by the trial court and evaded by the

Maryland Court of Special Appeals in its reversal of the trial

court because, in its opinion, it asserts that a motion to dismiss

may not properly be grounded in proffered testimony. By virtue

of this analysis, it is obvious that the Court of Special Appeals

overlooked the essential basis on which the trial court dismissed

the charges, for it was not based on proffered testimony, but to

the contrary, was based on the police officer’s testimony that he

purchased the film for use in his employment as a police officer

(42a), which obviously was in the opinion of the trial court

sufficient to bring the case within the exemption of Article 27,

Section 423. ‘

The opinion is replete with diversions as to signs posted in

the bookstore; testimony only as to the suppression motion and

not as to the motion to dismiss; and insufficient testimony to

establish facts which petitioner originally proffered as to the

basis of his Section 423 exemption, i.e., that the notices in

question were posted in plain view, that the officer saw them,

and that by purchasing the film he agreed to do so for

governmental purposes. It becomes obvious from a complete

review of the opinion by the Court of Special Appeals that the

court has gone to great lengths to avoid the constitutional issue

decided by the trial court and raised on appeal by diverting to

everything but the plain and simple facts upon which the trial

court based its decision that the statute was unconstitutionally

applied, which are as follows:

1. Petitioner’s counsel proffered he could demonstrate the

material was purchased for governmental justification (29a).

2. The trial court took judicial notice that Article 27,

Section 423 provides that the prohibitions and penalties

provided under Section 418 are not applicable when the material

is purchased for governmental justification.

3. The State was charged with knowledge of Section 423 at

the time of the purchase.

4. The police officer testified that he purchased the film for

use in his employment as a police officer (42a) and he is an arm

of the government.

5. Petitioner’s counsel informed the court that testimony as

to the motion to dismiss and suppress would be overlapping

(26a).

6. The Court requested testimony or evidence as to the

exemption portion of the statute (37a).

7. The Court did not consider whether the signs throughout

the store were seen by the police officer in reaching its decision

or even consider the signs at all (56a).

8. The presence of the signs were introduced into the case

by the State (33a).

9. The State on cross-examination never asked the officer if

he saw the signs, or were they posted in plain view (43a-46a).

10. The implication from the State, introducing the issue of

the signs into the case (33a), implies that they knew they were

there and posted in plain view.

The Court of Special Appeals did not indicate that the trial

court abused its discretion in granting the motion to dismiss, it

simply states that the court’s error was procedural; yet it avoids

relating to the simple facts and testimony upon which the trial

court based its decision and discusses everything that is

inapplicable in an effort to avoid the constitutional issue as to

the unconstitutional application of the statute. The opinion is no

more than six pages of! circumlocution.

CONCLUSION

If the decisions of this Court and the Fifth and Fourteenth

Amendments to the United Siates Constitution, relating to due

process of law, procedural or otherwise, in addition to equal

protection of the laws, are to continue to have meaning and

vitality, the decision of the Court of Special Appeals that is

barren of case law or statutory authority to support its position,

must be set aside, for its re. ults stifle a trial court in its duty to

comply with the Maryland Rules of Procedure 736{a)(c) and (f)

and its ability to give due process and equal protection of the

law, as a result of which, petitioner cannot receive due process

and equal protection of the laws.

For the reasons set forth above, a writ of certiorari should

be granted to review the judgment of the Court of Special

Appeals of Maryland.

Respectfully submitted,

s/ Burton W. Sandler

Attorney for Petitioner

APPENDIX

APPENDIX A — OPINION OF MARYLAND COURT OF

SPECIAL APPEALS

UNREPORTED

IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 1193

September Term, 1979

STATE OF MARYLAND

CALVIN ANDRE GRAVETT

Morton

Moylan

MacDaniel,

JJ.

Per Curiam

Filed: May 12, 1980

In September 1979, appellee Calvin Andre Gravett was

brought to trial in the Circuit Court for Prince George’s County

upon a criminal information charging him with distributing

obscene matter in violation of Md. Ann. Code art. 27, §418. He

challenged the sufficiency of the charging document in motions

to dismiss and to suppress evidence. On September 25, 1979,

after a hearing on the motion to suppress, which included

presentation of testimony, the tral court granted appellee’s

Appendix A

motion to dismiss on the ground that the provisions of the

statute in question granted an outright exemption to appellee

under the circumstances of the case. That is to say, the trial

judge ruled that appellee had committed no crime. The State has

filed a timely appeal alleging error to the trial judge’s dismissal

of the criminal information. We shall reverse.

Article 27, §418 of the Annotated Code of Maryland

provides:

“Any person who knowingly sends or causes

to be sent, or brings or causes to be brought, into

this State for sale or distribution, or in this State

prepares, publishes, prints, exhibits, distributes,

or offers to distribute, or has in his possession

with intent to distribute or to exhibit or offer to

distribute, any obscene matter is guilty of a

misdemeanor.”

But §423 (Exemption) states:

“The prohibitions and penalties imposed in

this subtitle shall not extend to persons having

bona fide scientific, educational, governmental,

or other similar justification for possessing such

matter, or to distributions thereof pursuant to

such justification.”

The accusations against appellee were contained in a

criminal information! alleging that on or about November 17,

1. The accusations against appellee were originally contained in a

statement of charges. At the hearing on appellee’s motions to suppress and to

dismiss, by agreement of both parties and with consent of the court, the

statement of charges was nolle prossed and a criminal information filed in its

place. Appellee’s pleadings were then amended by interlineation to conform to

the change.

Appendix A

1978, appellee “unlawfully did knowingly distribute obscene

matter, to wit: a color film entitled ‘Plenty To Go Around,” in

violation of Article 27, §418. Appellee filed motions to suppress

evidence and to dismiss, which came on for hearing on May 14,

1979. Though appellee raised several issues in his motions,? his

arguments at the hearing were confined to the sole question of

the legal sufficiency of the allegations contained in the charging

document. Pointing to the language of Article 27, §423, appellee

argued:

“ .. I’m saying that in our particular situation,

under the Maryland statute we do not have a

defense, we do not have to point out the defense.

I am saying under the context of the conduct

that’s been alleged on the part of the defense in

this case we have an outright exemption. His

conduct is not criminal by the very language of

the statute. In this case he allegedly sold a motion

picture film that was obscene. ... What we are

saying, assuming for the sake of argument that

the motion picture is obscene as a matter of law,

and for the sake of argument the defendant did,

in fact, sell it or distribute it, distribute it as

required under the law, then, your Honor, it

would not be criminal conduct under Section

423, because the object of the individual

purchasing the film, we submit to the Court

respectfully, we proffer to the Court that we can

demonstrate, was for the purpose to be used as

evidence in a pending criminal prosecution.

2. Appellee asserted that the criminal information was vague and

insufficient; that his arrest was made without probable cause; that Art. 27,

§418 was void for vagueness and overbreadth, and that Art. 27, §418 violated

appellee’s due process rights and other rights guaranteed by the First, Fourth,

Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution.

Appendix A

Now, we would suggest, your Honor, that

the officer who purchased the motion picture film

and, in fact, selected the film without any help

from the defendant, did so as an arm of the

government, did so for governmental purposes or

for other similar justification, and that is the

broad language in that section of 423.

If that is what he did, then obviously the

distribution was pursuant to that justification. He

didn’t make any other justification known to the

defendant. We are suggesting, your Honor,

proffering that the purpose of the distribution

was also for education or other similar

justification and that it’s not prohibited conduct

under this statute.”

And, citing the Supreme Court’s opinion in Miller v.

California, 413 U.S. 15 (1973), appellee continued:

“What I am suggesting to your Honor and what

we have suggested in our motion to dismiss —

and this, your Honor, falls in line, I believe, with

our argument in connection with the exemption

under Section 423. We first take the position that

we have an outright exemption, not an

affirmative defense, by the veiy language of the

statute, the very broad language of the statute

under the context of the conduct that has been

placed before the Court.

THE COURT: In other words, the sale

wasn’t solicited or thrust upon him? That’s what

you are saying?

Appendix A

MR. SANDLER [Appellee’s

Attorney]: Yes, sir. We are saying that under the

very language of our statute we have an outright

exemption.

B, we are going on further to say that

because the State of Maryland must now, in

trying an obscenity case, apply the Miller

standards, that those standards~ are only

applicable to a situation where material is thrust

by aggressive sales action upon unwilling

recipients.

THE COURT: How can I buy your first

argument unless I have heard some testimony

relative thereto?

MR. SANDLER: You mean the exemption

portion?

THE COURT: Yes.

MR. SANDLER: As I said, your Honor,

we would argue and if you wanted to hear

evidence on the suppression hearing we would be

more than happy to call a witness.

THE COURT: I don’t feel I could make an

intelligent decision on that point without

evidence. I mean, what you are telling me may

very well be a perusal of the evidence, but it’s not

literally before me.

MR. SANDLER: Then, your Honor, going

on to the suppression argument and setting aside

Appendix A

the motion to dismiss for a moment, we-will call

for the purposes of the suppression hearing the

police officer to the witness stand as our witness.”

Thereupon, the arresting officer was called to testify. The

detective stated that shortly after eleven a.m., November 17,

1978, he entered the Silver News Store in Prince George’s

County and asked appellee, the attendant, if “they had any

film.” Appellee “brought out a stack of approximately twenty-

five to thirty films and I chose my film from these, paid him

[appellee] for it.” The film, “Plenty To Go Around,” was

purchased for $15.75, tax included, with police funds. The

detective stated that after reviewing the film with another officer

and ascertaining its obscene content, he obtained a warrant for

appellee’s arrest, which he served. After argument by counsel

and receipt of the arresting officer’s testimony, the trial judge

ruled:

“The court is of the opinion that the provisions

of Article 27, §423 extend an outright exemption

in this case, noting in passing that the alleged

obscene material was obtained by Corporal

Fickinger, a government agent, and the court

rules that if the government had a right to

possess [obscene material,] someone had a right

to deliver the possession [of it], and accordingly

will grant the motion to dismiss. This action by

the court leaves the State free to proceed with

any appellate review that they wish.

The question of the overbreadth or

vagueness of the section, §423, relative to the

constitutional question will not have to be

decided by this court. Although I might observe

in passing it would appear to this court to be

Appendix A

vague and overreaching. However, the decision in

this case is predicated upon the fact that the

court at this hearing declares that the defendant

is exempt in an evaluation of the testimony

proffered with respect to the motion to dismiss

and, accordingly, will dismiss the information.”

Appellant argues that the criminal information was

sufficient to charge an offense, and that the trial court

improperly granted the motion to dismiss.? We agree.

The trial court’s error was procedural. Upon review of the

record, it is clear that counsel were presenting separate

arguments, respecting appellee’s motions to suppress and to

dismiss. The motion to dismiss was argued first. During the

course of argument, which turned on the applicability of the

§423 exemptions, appellee’s counsel referred to certain signs

which allegedly hung in appellee’s store as notice that sales

would only be made pursuant to those exemptions. It appears

that counsel even went so far as to have photographs of such

signs marked for identification. Nevertheless, it is clear that they

were never introduced into evidence. More importantly, no

actual testimony of any kind was ever presented to the trial

court relative to the motion to dismiss. Appellee’s counsel

merely made proffers of what the testimony and evidence would

show.

At this point in the proceedings, the focus shifted and

appellee’s motion to suppress came on for consideration. But

again, the record clearly reflects that the arresting officer’s

testimony, supra, taken at that time, applied only to the motion

3. Appellant also argues that the trial court improperly interpreted Art.

27, §423. We do not reach that issue in this case, but confine ourselves solely to

the procedural question whether the grant of the motion to dismiss was proper

under the circumstances.

Appendix A

to suppress, not to the motion to dismiss. So, at the close of

argument on the two motions, the record contained testimony

only relative to the issue of suppression, and only proffers of

testimony respecting the issue of dismissal. It is therefore evident

that when the trial court set aside the issue of suppression to rule

on dismissal the record as to dismissal was wholely insufficient

to sustain the ruling. The trial court specifically declined to rule

upon the constitutionality of the statute; it addressed itself only

to the statute’s applicability to the facts in this case. Herein lies

the error. First and foremost, the gran: of a motion to dismiss

may not properly be grounded in proffered testimony. And

second, even if the testimony given as to suppression had

properly been presented for consideration on the issue of

dismissal, that too would have been insufficient. It wholely failed

to establish the facts which appellee originally proffered as the

basis for his §423 exemption, i.e., that the notices in question

were posted in plain view, that the officer saw them, and that by

purchasing the film he agreed to do so for “governmental

purposes.” Under no circumstances, therefore, was the grant of

the motion to dismiss permissible.4 Consequently, we are

compelled to reverse.

JUDGMENT REVERSED.

CASE REMANDED FOR FURTHER

PROCEEDINGS CONSISTENT WITH

THIS OPINION.

APPELLEE TO PAY THE COSTS.

4. We think we should also make the following point. In this case the

criminal information specifically alleged a violation of Art. 27, §418. On its

face, the charging document disclosed no irregularity. Therefore, unless the

trial court was prepared to rule that the statute was unconstitutional, there was

no proper ground for granting a motion to dismiss. Under these circumstances,

the question of appellee's guilt, or the applicability of $423, should have been

subject to trial where, after proper presentation of testimony, the court could

have entertained arguments bearing on the grant or denial of a motion for

judgment of acquittal.

APPENDIX B — MARYLAND COURT OF APPEALS’

DENIAL OF PETITION FOR A WRIT OF CERTIORARI

In the Court of Appeals of Maryland

Petition Docket No, 190

September Term, 1980

(No, 1193, September Term, 1979 Court of Special Appeals)

CALVIN ANDRE GRAVETT

STATE OF MARYLAND

ORDER

Upon consideration of the petition for a writ of certiorari to

the Court of Special Appeals in the above entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that the

petition be, and it is hereby, denied as there has been no showing

that review by certiorari is desirable and in the public interest.

/s/ Robert C. Murphy

Chief Judge

Date: August 11, 1980.

a 10a

APPENDIX C — PERTINENT CONSTITUTIONAL,

STATUTORY PROVISIONS AND MARYLAND RULES

INVOLVED

1. First Amendment — United States Constitution

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof, or abridging the freedom of

speech, or of the press, or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.”

2. Fourth Amendment — United States Constitution

“The right of the people to be secure in their

persons, 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.”

4 3. Fifth Amendment — United States Constitution

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury

except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of

War or public danger; nor shall any person be

subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself,

lla

Appendix C

nor be deprived of life, liberty or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.”

4. Section 1, Fourteenth Amendment — United States

Constitution

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No States 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 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 27, Section 418 of the Maryland Code

“Sending or bringing into State for sale or

distribution; publishing, etc., within state.

Every person who knowingly sends or causes to

be sent, or brings or causes to be brought, into

this State for sale or distribution, or in the State

prepares, publishes, prints, exhibits, distributes,

or offers to distribute, or has in his possession

with intent to distribute or to exhibit or offer to

distribute, any obscene matter is guilty of a

misdemeanor.” (Emphasis supplied.)

6. Article 27, Section 423 of the Maryland Code

12a

Appendix C

“The prohibitions and penalties imposed in this

subtitle shall not extend to persons having bona

fide scientific, educational, governmental, or

other similar justification for possessing such

matter or to distribute thereof pursuant to such

justification.” (1967, ch. 394, §1).

7. Maryland Rule 736

“a. A Motion asserting one of the following

matters shall be filed in conformity with this

Rule. Any such matter not raised in accordance

with this Rule is waived, unless the court, for

good cause shown, orders otherwise:

1. A defect in the institution of the

prosecution;

2. A defect in the charging document,

other than its failure to show jurisdiction

in the court or to charge an offense which

defenses can be noticed by the court at

any time;

3. An unlawful search, seizure,

interception of wire or oral

communication, or pretrial

indentification.

4. An unlawfully obtained admission,

statement or confession.

5. A motion for joint or separate’ trial of

defendants or offenses.

13a

Appendix C

c. Other Motions

Any other defense, objection or request capable

of determination before trial without trial of the

general issue shall be raised by motion filed at

any time before trial.

f. Determination

A motion filed pursuant to this Rule, except a

motion to dismiss for failure to obtain a speedy

trial, shall be determined before trial unless the

court otherwise directs in a motion involving

subsection a 4 of this Rule. If factual issues are

involved in determining the motion, the court

shall state its finding on the record.

l4a

APPENDIX D — MOTION TO DISMISS IN THE CIRCUIT

COURT FOR PRINCE GEORGE’S COUNTY

IN THE CIRCUIT COURT FOR PRINCE GEORGE’S

COUNTY

CA 20366

STATE OF MARYLAND

CALVIN ANDRE GRAVETT

Defendant

MOTION TO DISMISS CRIMINAL INFORMATION

The Defendant, through undersigned counsel move the

Court for an order dismissing the case against the Defendant

and as grounds for said motion states the following:

The State’s Attorney for Prince George’s County, pursuant

to a Criminal Information has instituted a criminal proceeding

charging the Defendant, as follows:

“That the above named Defendant John Doe on or about

November 17, 1978 at 2488 Chillum Road, Chillum, Prince

George’s County, Maryland, unlawfully did distribute obscene

matter to wit: a color film ‘Plenty to go around’, in violation of

Ann. Code of Md. Art. 27 Sec. 418.”

The Criminal Information is vague and insufficient as a

matter of law in that it fails to set forth with sufficient specificity

the charges of which the Defendant stands accused.

15a

Appendix D

The statutory provisions under which the State is

proceeding are, as written, repugnant to the First, Fourth, Fifth,

Sixth and Fourteenth Amendments to the Constitution of the

United States because:

(a) Said statutory provisions are void for vagueness in

that the same forbid or require the doing of an act in

terms so vague, fluid and indefinite that men of common

intelligence must necessarily guess at the meaning and

differ as to the application thereof, and, as such, are

repugnant to the Due Process provisions of the Fifth and

Fourteenth Amendment to the Constitution of the

United States; and further,

(b) Said statutory provisions ae void for overbreadth by

means which sweep unnecessarily broadly and thereby

invade the area of protected freedoms in that the statute

sets forth no standards for determining and regulating

obscenity and thus are insufficient for those minimum

standards proscribed by the United States Supreme Court

in connection with publications presumptively protected

under the First Amendment and Fourteenth

Amendment; and further,

and impermissible overbreadth, in the area of First

Amendment freedoms, because the said provisions are

susceptible of sweeping and improper application by law

enforcement officials and have a “chilling and inhibiting

effect” on the exercise of the Federal Constitutional

rights of citizens of the State of Maryland and the

United States, as well as the Defendants, to publish,

distribute, circulate, sell, receive and/or purchase

material protected by the First Amendment, and further,

16a

Appendix D

(d) Said statutory provisions are repugnant to the

substantive Due Process provisions of the Fifth and

Fourteenth Amendments to the United States

Constitution because they permit deprivation of liberty

and/or property rights and interests for the exercise of

First Amendment rights by unreasonable, arbitrary, and

capricious means by law enforcement officials of the

State of Maryland without a showing of a real and

substantial relationship to any state’s relationship to any

state’s subordinating interest which is compelling to

justify state action limiting First Amendment freedoms,

and further,

(e) Said statutory provisions are impermissibly broad

and repugnant to the procedural Due Process

requirements of the Fifth and Fourteenth Amendments

to the Constitution of the United States by employing

means lacking adequate safeguards which Due Process

demands to assure non-obscene material the

constitutional protection of the First Amendment to

which it is entitled; and further

(f) That the statutory provisions under which Defendant

is being prosecuted on its face deny to Defendant the

equal protection of the laws.

3. There was no constitutionally relevant evidence to

support probable cause, nor is there any reasonable or probable

cause to believe that the material charged under this Criminal

Information is obscene under the First Amendment and

Fourteenth Amendment to the Constitution of the United States

in that:

(a) There was no evidence that the material involved

herein exceeds the limits or candor, tolerated in the State

17a

Appendix D

of Maryland, in the representation or depiction of

matters pertaining to sex and/or nudity.

(b) There was no evidence that the material involved

herein appeals to the prurient interest of the average

adult intended recipient, or that the prurient appeal was

successful.

The statutory provisions are clearly repugnant to the Firsz,

Fourth, Fifth, Sixth and Fourteenth Amendments to the

Constitution of the United States as said provisions have been

applied, construed, and are being applied and construed by the

State’s Attorney and/or law enforcement officials in the

following respects:

(a) That in the application of said statute, the said law

enforcement officials did not have available the necessary

probable cause or the higher hurdle or unreasonableness

necessary for the issuance of the Criminal Information.

(b) That in the application of said statute, the State's

Attorney did not limit his prosecutorial efforts, as is

constitutionally required, to those instances where

sexually explicit materials specifically defined in the

State statute, or authoritatively construed, have been

thrust by aggressive sales action upon unwilling

recipients, who had in no way indicated any desire to

receive or view said materials.

be subjected to prosecution for the sale or exposure of

obscene material unless these materials depict or describe

patently offensive “hard core” sexual conduct specifically

defined by the regulating state law, as written or

18a

Appendix D

construed, and only under circumstances in which

sexually explicit materials have been thrust by aggressive

sales action upon unwilling recipients who had in no way

indicated any desire to receive such materials.

(d) That Defendant herein have by the statute under

which they are being prosecuted an affirmative defense

to the charges placed against them and are exempt from

prosecution herein.

4. That the criminal information and the supporting

application for statement of charges does not state a crime under

Article 27, Section 418, et seq., and is therefore null and void on

its face.

5. That the Defendant was arrested falsely and without

probable cause as the charging document does not set forth facts

sufficient to establish criminal activity on the part of the

Defendant under Article 27, Section 418, et seq.

6. That Article 27, Section 418, et seq. is unconstitutional

on its face and as applied to the Defendant in that it denies to

the Defendant equal protection under the laws and due process

of law in violation of his rights under the First, Fifth and

Fourteenth Amendments to the United States Constitution.

7. That Article 27, Section 418, et seq. is void for vagueness

and overbreadth.

8. That the State’s Attorney has now filed a Motion to

Amend the charging document to include the term “knowingly”

as a result of acquitals in other cases because the informations in

those other cases were as fatally defective as the information in

this case. That there is no probable cause now, nor was there

19a

Appendix D

any at the time this information was issued to establish the

element of “scienter” under the facts and circumstances of the

alleged distribution in this case and to allow an amendment as

requestec would deny to the Defendant due process of law and

this information should be dismissed.

9. That the distribution alleged in the Criminal Information

is a permissive distribution, and is not considered criminal

activity under Article 27, Section 418, et seq.

Il.

It is, therefore, respectfully submitted that the prosecution

in the case at bar is brought in bad faith for the purposes of

harassment and the statute under which the State is proceeding

is void for vagueness, unconstitutional on its face and is being

unconstitutionally applied to the Defendant.

WHEREFORE, the Defendant prays that the Criminal

Information be dismissed.

Respectfully submitted,

/s/

Burton W. Sandler

Suite 600

Towson Towers

28 Allegheny Avenue

Towson, Maryland 21204

(301) 821-6777

Attorney for Defendant

ees

20a

Appendix D

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that on this 11th day of May, 1979

a copy of the aforegoing Motion to Dismiss Criminal

Information was mailed prepaid to John Dominguez, Assistant

State’s Attorney, State’s Attorney’s Office, Court House, Upper

Marlboro, Maryland, 20870.

/s/

Burton W. Sandler

2la

APPENDIX E — TRANSCRIPT OF PROCEEDINGS AT

PETITIONER’S TRIAL IN THE CIRCUIT COURT FOR

PRINCE GEORGE’S COUNTY, MARYLAND,

SEPTEMBER 24 AND 25, 1979

[1] VOLUME |

IN THE CIRCUIT COURT FOR PRINCE GEORGE’S

COUNTY, MARYLAND

Criminal Appeals No. 20,366

STATE OF MARYLAND

VS.

CALVIN ANDRE GRAVETT,

Defendant.

Courtroom No. |

County Courthouse

Upper Marlboro, Maryland

Monday, September 24, 1979

The above-entitled matter came on for hearing in open

court at 10:55 o'clock a.m.

BEFORE:

HONORABLE SAMUEL W. H. MELOY, Associate

Judge.

APPEARANCES:

22a

Appendix E

JOHN P. DOMINGUEZ, ESQ., Assistant State’s

Attorney for Prince George’s County, appearing on behalf of the

State of Maryland.

BURTON W. SANDLER, ESQ. and LOUIS JAMES

MORSE, ESQ., appearing on behalf of the defendant

PAUL GAZDAYKA

OFFICIAL COURT REPORTER

P.O. Box 401

Upper Marlboro, Maryland

* 20870.

fijJTA BLE OF CONTENTS

WITNESSES DIRECT CROSS

John L. Fickinger 19 25

2])PROCEEDINGS

THE DEPUTY CLERK: C. A. 20,366, State of Maryland

vs. Calvin Andre Gravett.

MR. DOMINGUEZ: John Dominguez, assistant State’s

Attorney, for the record.

MR. SANDLER: Burton W. Sandler, attorney for the

defendant, for the record.

MR. MORSE: Louis James Morse, attorney for the

defendant.

23a

Appendix E

MR. DOMINGUEZ: May it please the Court, as a

preliminary matter the State wishes to file criminal information

in the jacket in this particular case pursuant to a discussion on

the 20th of June with your Honor and the defense counsel in this

case. And in accordance with that discussion the State is filing

this as criminal information in the jacket and serving two copies

On opposing counsel.

THE COURT: My understanding with respect to the

criminal information, it is against the named defendant, Calvin

Andre Gravett, and that the defendant through his counsel, Mr.

Sandler, had a prior hearing with resvect to C. A. 20366 and

consented to the criminal information, which is no more than an

amended information, so that it would comply with the

provisions of Rule 723. Is that correct, sir?

MR. SANDLER: Yes, sir.

THE COURT: Very well. And you accepted on behalf of

(3] your client service of the criminal information just filed?

MR. SANDLER: Yes, sir.

THE COURT: Do you wish to file a plea to it short on the

record?

MR. SANDLER: Your Honor, the plea would be not

guilty, trial by jury. And the motion to dismiss and the motion

to suppress previously filed, your Honor, we would submit,

would be applicable to the new information.

THE COURT: And you are requesting the Court to take

cognizance of those motions as filed against this criminal

information?

24a

Appendix E

MR. SANDLER: Yes, sir.

THE COURT: Very well. Does the State wish to dismiss

the original information?

MR. DOMINGUEZ: Well, yes, the State wishes to dismiss

the original statement of charges filed in this matter. However,

just for the record we would indicate that the probable cause

that was present in the original arrest shouldn’t have — just

strike that, your Honor.

The State does nol-pros the statement of charges. Although

the defense attorney’s motion to dismiss was captioned “Motion

to Dismiss Criminal Information,” there were no criminal

informations pending at the time the defense attorney filed those

motions. It was only a statement of charges.

THE COURT: There should be at issue, as I understand [4]

it, the criminal information filed today.

MR. DOMINGUEZ: Yes, your Honor.

MR. SANDLER: Your Honor, we would ask the Court,

for the purpose of form, to allow the defendant to amend his

motion by interlineation to apply to a criminal information. As I

understand, this is a criminal information that has been filed

today.

THE COURT: Very well.

MR. SANDLER: In error the original accusation was a

statement of charges, I understand. As to form we ask the Court

to allow us to amend by interlineation, for the motion to apply

to a criminal information rather than a statement of charges.

25a

Appendix E

THE COURT: And in addition thereto you are filing a plea

short of not guilty?

MR. SANDLER: Yes, sir.

THE COURT: Very well. Madam Clerk, you will make the

following entry on the daily sheet: Criminal information filed;

plea of not guilty and demand for jury trial filed by defendant.

Motion to suppress evidence filed on the 14th of May, 1979, by

interlineation filed against criminal information filed this date.

And motion to dismiss heretofore filed May the 14th, 1979, by

interlineation, to apply against criminal information filed this

date. Answers filed by the State to be considered applicable to

motions filed.

Gentlemen, I think that takes care of it. I would [5] be

pleased to hear you on your motions.

MR. SANDLER: May I approach the bench, your Honor?

THE COURT: Sure.

(Whereupon, counsel approach the bench and a discussion

was had off the record, at the conclusion of which counsel return

to the trial table and the following proceedings were had in open

court:)

THE COURT: All right, Mr. Sandler, you may proceed,

sir. May I have the information? Do you have an extra copy of

this, Mr. State’s Attorney?

MR. DOMINGUEZ: I filed two copies on the defense.

THE COURT: Take this to the library and get me a couple

of photostats, will you.

26a

Appendix E

MR. SANDLER: You could use mine temporarily. We

have an extra copy.

THE COURT: All right, sir, proceed.

MR. SANDLER: Your Honor, we have before the Court a

motion to dismiss the criminal information and a motion to

suppress. The bases, your Honor, for the motion to dismiss and

the motion to suppress are the same and overlapping, although I

would assume procedurally they must be placed before the

Court to make the record complete.

The argument that we proffer to the Court in connection

with the motion to dismiss, as I am sure you have seen the

motion to dismiss, will address the Court orally as to only one

[6] element of that motion to dismiss without waiving any of the

other arguments made on the face of the motion as to the

constitutionality, so forth and so on.

THE COURT: Let me find the motion now. Very well, I

have it.

MR. SANDLER: We have, your Honor, in the motion to

dismiss the criminal information, made numerous allegations as

to why the Court should dismiss the criminal information. We

have alleged numerous constitutional issues. As indicated, your

Honor, I will address myself only to one issue orally and

without waiving any of the other issues raised on the face of the

motion.

Your Honor, basically we proffer to the Court that the

defendant before the Court is charged with allegedly selling an

obscene motion picture in violation of Article 27, Section 418.

We submit, your Honor, as a result of the language in Section

27a

Appendix E

423 of Article 27, “Exemptions,” the conduct of the defendant is

not criminal conduct and not prohibited under the statute, and

for that reason, your Honor, the criminal information should be

dismissed.

THE COURT: Just a minute. All right, go ahead.

MR. SANDLER: For the purposes of the argument, your

Honor, the language of Section 423, and for the record, states as

follows, and with the Court’s permission I would like to read it

into the record.

[7] THE COURT: You may, sir.

MR. SANDLER: Section 423, your Honor, states,

“The prohibitions and penalties imposed in this subtitle

shall not extend to persons having bona fide scientific,

educational, governmental, or other similar justification for

possessing such matter, or to distributions thereof pursuant to

such justification.”

Your Honor, we have indicated to you that there is a New

York statute, and we have submitted to the Court the case of

People vs. Ranch out of the New York court. The New York

statute has a similar, almost identical section in it, but on its face

it makes it an affirmative defense. It makes an affirmative

defense available to an individual that he can raise at trial or

prosecution.

THE COURT: I thought they went by the wayside when

. you speak of the Mullaney case and the others that follow.

MR. SANDLER: No, sir. I submit, Mullaney did not set

that aside. By statute the legislature can make it an affirmative

28a

Appendix E '

defense, or, if it’s not on the face of the statute, by judicial

construction an appellate court can construe the statute as to

make it an available affirmative defense.

But the analogy, I submit to the Court, in that case was the

Court said that if an affirmative defense was not available to an

individual by virtue of the exemption language in the statute,

then he would be denied due process and equal protection [8] of

the law.

So that in order to save the constitutionality of the New

York statute that Court decided that the exemption, even

though on its face it made it an affirmative defense, would have

to be available to the defense, or else they would be denied equal

protection of the law.

As I recall, the argument in that case was that it’s not an

affirmative defense, it shouldn’t be an affirmative defense, and

the Court reasoned if it wasn’t, that in order to save the statute it

would have to give the same opportunity to this defendant as to

people that fell within this category, or else it would deny equal

protection of the law.

THE COURT: Are you saying, Mr. Sandler, that you feel

it’s necessary to point out a defense to a statute?

MR. SANDLER: To point out a defense?

THE COURT: Yes. That’s, in effect, what it’s doing.

MR. SANDLER: No, sir. I’m saying that in our particular

situation, under the Maryland statute we do not have a defense,

we do not have to point out the defense. I am saying under the

context of the conduct that’s been alleged on the part of the

29a

Appendix E

defense in this case we have an outright exemption. His conduct

is not criminal by the very language of the statute. In this case he

allegedly sold a motion picture film that was obscene.

In a sense, when you have a case like this before the [9]

Court you put the cart before the horse, because no one has yet

determined the motion picture film is obscene. There has been

no judicial proceeding, no adversary proceeding, and no

application of a constitutional standard to determine that it’s not

protected expression. But for all intents and purposes we have

made these arguments like this is bootstrapping, but we come in

here being charged with selling an obscene film.

What we are saying, assuming for the sake of argument that

the motion picture is obscene as a matter of law, and for the

sake of argument the defendant did, in fact, sell it or distribute

it, distribute it as required under the law, 4hen, your Honor, it

would not be criminal conduct under Section 423, because the

object of the individual purchasing the film, we submit to the

Court respectfully, we proffer to the Court that we can

demonstrate, was for the purpose to be used as evidence in a

pending criminal prosecution.

Now, we would suggest, your Honor, that the officer who

purchased the motion picture film and, in fact, selected the film

without any help from the defendant, did so as an arm of the

government, did so for governmental purposes or for other

similar justification, and that is the broad language in that

section of 423.

If that is what he did, then obviously the distribution was

pursuant to that justification. He didn’t make any other

justification known to the defendant. We are suggesting, [10]

your Honor, proffering that the purpose of the distribution was

also for educational or other similar justification and that it’s

not prohibited conduct under this statute.

30a

Appendix E

Now, we submit to the Court if someone would walk in that

store and say, “Now, look, I’m not buying this film I’m picking

out for educational, scientific, governmental or other similar

justification. I’m buying it for some other reason I’m not going

to tell you about,” and the defendant would then sell it to him or

distribute it to him, then that would be criminal conduct.

This language under Section 423 is broad. The other similar

justification portion of it covers a vast area of speculation. The

legislature made the language available to us. And, your Honor,

obviously we should be able to use the vagueness. I would say

that under the old contract law all ambiguities in the contract

are construed against the draftsman. But we have a penal statute

here. I suggest that vague language should be construed in favor

of the defendant and he should be able to take advantage of it.

We didn’t place it there, but it’s there. It didn’t stop at

educational and scientific; it went on further to say or other

similar justification.

I respectfully submit to the Court than can be expanded to

include the conduct that is alleged on the part of my client here,

and I respectfully submit, your Honor, that it is not criminal

conduct. Without going into the evidence, [11] unless the Court

wants us to demonstrate, we suggest going beyond the motion to

dismiss, that the evidence must be suppressed for constitutional

reasons and due process reasons under the Fifth, the Fourth and

the Fourteenth Amendments. Because if it’s not prohibited

conduct under Section 423, then it can’t be used.

THE COURT: You used the Fifth Amendment. Where do

you bring the Fifth in? I understand the Fourth and perhaps the

Eighth and Fourteenth.

MR. SANDLER: Equal protection.

3la

Appendix E

THE COURT: The Fifth?

MR. SANDLER: Yes, sir.

THE COURT: All right, go ahead.

MR. SANDLER: That, your Honor, would be basically the

argument for both the motion to dismiss and the motion to

suppress. We have asked for a suppression hearing. I don’t

believe it would be necessary, unless the State wants us to

demonstrate through the witness the purpose the material was

purchased. I would think the Court maybe could take judicial

notice of the fact the police officer is an arm of the government.

I don’t believe he purchased it for his own personal use or

to do anything with it other than to use it in this case. I suggest

that is a governmental purpose and covered under the language

of this statute or under the broadening language of [12] “other

similar justification.” And that brings the defendant within the

purview of the language and within the purview of noncriminal

conduct.

On that basis, if it’s noncriminal conduct, statutorily the

motion to dismiss should be granted, and evidence for equal

protection reasons should not be used in this trial if the Court

decides not to grant the motion to dismiss. Thank you, your

Honor.

MR. DOMINGUEZ: Your Honor, —

THE COURT: Before you get started I am going to re-read

this argument that has been filed, as well as amplified by oral

argument.

32a

Appendix E

(There was a short pause in the proceedings).

THE COURT: Very well, Mr. Dominguez, you may

proceed.

MR. DOMINQUEZ: Your Honor, if the defendant argues

the Court should dismiss the charges in this case because he has

an affirmative defense, I believe, your Honor, that is just not

criminal procedure, that is not criminal law. The defendant has

the defense of alibi or justification, or something else he can

raise at the appropriate point in the trial.

Unlike a Civil case he doesn’t have to assert an affirmative

defense as an answer to a charge in this case. I have never heard

of an affirmative defense being the reason for dismissing a

criminal information or charge in the case as equivalent to an

action for a summary judgment in a civil case.

[13] Also, the defendant makes another point and says that

his conduct under Section 423 is exempted conduct from the

obscenity statute. Your Honor, I think defense counsel has

adopted or incredibly twisted and made an absurd interpretion

concerning Section 423. Section 423 deals with the motives of

the defendant. The officer isn’t on trial here. A customer isn’t on

trial. It’s the person who is charged with distributing obscene

material, and that’s the person whose motives are at issue here,

not the police officer’s.

The statute reads “... bona fide scientific, educational,

governmental, or other similar justification. . .”

THE COURT: That’s 423 you're talking about?

MR. DOMINGUEZ: Yes, your Honor.

33a

5 Appendix E

THE COURT: Go ahead.

MR. DOMINGUEZ: Now, that statute clearly, and on its

face, indicates that there may be some circumtances. For

example, someone may offer a college course in erotic films. In

that particular circumstance if the professor were showing these

films to his class it wouldn’t be prohibited conduct under

Section 418.

Furthermore, you might be able to envision a psychiatric

counselor or marriage counselor who might have some use for

these films, for example, I guess, if a husband and wife’s sexual

relationships just deteriorated and they had no interest at all.

Perhaps he may show these films for his scientific [14] purposes

or counseling purposes to try to get a spark — to kindle a spark

of excitement in the marriage in which the flame had gone out.

Section 423 covers those types of conduct.

Just because the defense in this case will argue that there are

signs, boilerplate signs posted over this adult book store at

which the defendant works, that doesn’t make it a bona fide

claim that the films are being sold for a bona fide scientific,

educational, library purpose. There are such things as shams,

and signs can be put up really just as a sham.

In this particular case the detective, Detective Fickinger, of

Vice/ Intelligence of Prince George’s County, went in, made a

direct buy at this bookstore of the film from the defendant. He

went back to the police station, he viewed the film. He went to

the Commissioner, he applied for a statement of charges, the

Commissioner authorized the issuance of the arrest warrant and

then Officer Fickinger went and arrested the defendant.

Those are the circumstances in this case, and under those

circumstances I believe, your Honor, that the defense has not

34a

Appendix E

raised any legal ground that would justify either a suppression of y

the evidence in this case or a dismissal of the criminal

information. Thank. you, your Honor.

MR. SANDLER: If your Honor please, if I have created

any confusion I apologize to the Court and to the State’s

Attorney. But I was not under the impression I indicated we [15]

were making an affirmative defense in this case, or that we were

required to make an affirmative defense, and obviously the State

was under the impression that was our position. I used as an

analogy a New York statute that makes an affirmative defense

available to a defendant that had the identical language to it that

our statute has.

THE COURT: I understand it’s an addendum to our 423.

MR. SANDLER: It’s identical to our 423. The only

difference is it states if it’s an affirmative defense.

To clarify the situation further, I notice that the State’s

Attorney conveniently avoided the latter portion of the section

that deals with other similar justification or refers only to that

language that talks about governmental, educational or

scientific. He mentioned the library, but that is not included in

our statute.

Section 423 has two parts to it. It deals with possession and

distribution pursuant to a certain justification. You know, your

Honor, that it’s not unlawful to possess obscene material in the

privacy of one’s own home. The Supreme Court of the United

States has decided that.

In our motion to dismiss, your Honor, not having argued it

but not having waived any of the statements, you will notice we

say the statute is void for vagueness and vague for overbreadth.

35a

Appendix E

He talks about the bona fide language in the section. [16]

Well, we have said the statute, if it doesn’t prohibit, if it doesn’t

exempt us because of this type of conduct, is void for vagueness

and void for overbreath. The section doesn’t define bona fide,

and if bona fide is applied to other similar justification how does

one treat bona fide as to other similar justification? There is

vaguene$s in that section.

In addition, your Honor, it’s void for overbreadth because

it is overbroad, and in its overbreadth application it denied

equal protection of the law if it’s not available to us. If you will

recall, your Honor, in the motion to dismiss, Page 4, Section (b),

we said:

“That in the application of said statute, the

State’s Attorney did not limit his prosecutorial

efforts, as is constitutionally required, to those

instances where sexually explicit materials

specifically defined in the State statute, or

authoritatively construed, have been thrust by

aggressive sales action upon unwilling recipients,

who had in no way indicated any desire to receive

or view said materials.”

THE COURT: That’s some kind of fancy language for a

dirty book or film. Go ahead.

MR. SANDLER: The Supreme Court of the United States

in Miller v. California, — I have a slip opinion here, your Honor

— redefined obscenity or obscene material. And if we go to trial

in this case, your Honor, today then obviously the [17]

Maryland law as construed would be bound by the new

definition of obscenity that arose in the Miller case. Interestingly

enough, your Honor, in the slip opinion — and I will submit it

36a

Appendix E

to the Court for the Court to take a look at it; I’m sure the State

has read the case — the Supreme Court of the United States

stated as follows, with the Court’s permission:

“This case involves the application of a

State’s criminal obscenity statute to a situation in

which sexually explicit materials have been thrust

by aggressive sales action upon unwilling

recipients who had in no way indicated any desire

to receive such materials. This Court has

recognized that the States have a legitimate

interest in prohibiting dissemination or

exhibition of obscene material when the mode of

dissemination carries with it a significant danger

of offending the sensibilities of unwilling

recipients or of exposure to juveniles.”

Now, they go on further to say as follows, and this is the

most important and interesting part of this:

“It is in this context that we are called on to

define the standards which must be used to

identify obscene material that a State may

regulate without infringing on the First

Amendment as applicable to the States through

the Fourteenth Amendment.”

What I am suggesting to your Honor and what we have [18]

suggested in our motion to dismiss — and this, your Honor, falls

in line, I believe, with our argument in connection with the

exemption under Section 423. We first take the position that we

have an outright exemption, not an affirmative defense, by the

very language of the statute, the very broad language of the

statute under the context of the conduct that has been placed

before the Court.

37a

Appendix E

THE COURT: In other words, the sale wasn’t solicited or

thrust upon him? That’s what you are saying?

MR. SANDLER: Yes, sir. We are saying that under the

very language of our statute we have an outright exemption.

B, we are going on further to say that because the State of

Maryland must now, in trying an obscenity case, apply the

Miller standards, that those standards are only applicable to a

situation where material is thrust by aggressive sales action upon

unwilling recipients.

THE COURT: How can I buy your first argument unless I

have heard some testimony relative thereto?

MR. SANDLER: You mean the exemption portion?

THE COURT: Yes.

MR. SANDLER: As I said, your Honor, we would argue

and if you wanted to hear evidence on the suppression hearing

we would be more than happy to call a witness.

THE COURT: I don’t feel I could make an intelligent

decision on that point without evidence. I mean, what you are

[19] telling me may very well be a perusal of the evidence, but

it’s not literally before me.

MR. SANDLER: Then, your Honor, going on to the

suppression argument and setting aside the motion to dismiss for

a moment, we will call for the purposes of the suppression

hearing the police officer to the witness stand as our witness.

Officer, would you please take the stand.

38a

Appendix E

Whereupon,

JOHN L. FICKINGER

was called as a witness by and on behalf of the defendant and,

having been first duly sworn, was examined and testified as

follow:

DIRECT EXAMINATION

By Mr. Sandler:

Q. Would you state your full name and address for the

Court? A. Corporal John L. Fickinger, Prince George's

County Police, stationed at the Vice/Criminal Intelligence

Section in Forestville, Maryland.

THE COURT: How do you pronounce your name?

THE WITNESS: Fickinger.

THE COURT: They had a F-1 here and I wanted to make

sure.

By Mr. Sandler:

Q. Officer, let me direct your attention to November the

[20] 17th, 1978, did you have occasion to be at 2488 Chillum

Road on that date? A. Yes, I did.

Q. Will you tell me what, if anything, you did?

Approximately what time were you at that address? A. About

11:05 in the morning.

39a

Appendix E

THE COURT: What time?

THE WITNESS: About 11:05 in the morning. At 11:05.

By Mr. Sandler:

Q. What was your purpose in going to that particular

location? A. To see if movie films were offered for sale.

Q. Just movie films? A. I’m not sure what you mean.

Q. You say movie films in general? A. I was to see if

pornographic movie films were offered for sale.

Q. Why were you looking for pornographic movie

films? A. Because they may have been in violation of the law.

Q. Do you know what “pornographic” means? A. I

believe it is sexually explicit.

Q. Did you find pornographic films? A. Yes, I did.

Q. Did you select a particular film? A. I selected a film.

[21]Q. A film? A. Yes, sir.

Q. You selected it yourself? A. Yes.

Q. What was the condition of the film when you selected it?

Was it in a box? A. Yes, it was in a box.

Q. Were you able to view the film? A. There was

advertising on the outside that showed a scene from the film.

40a

Appendix E

Q. How did you know that it was a scene from the film in

the box? A. That’s what it said.

Q. You had no way of knowing that? A. If they advertise

it to be there I felt that it would be in there.

Q. Now, why did you purchase that particular

film? A. You mean versus — why one was selected over

others?

Q. That particular film. Why did you select that particular

film? A. I’m not particularly — why this one? Probably

because there were five participants.

Q. Did you find that amusing? A. No. Amusing, no.

Q. Did you find it interesting? [22] A. It’s very hard to

say. I wasn’t able to see the whole film.

Q. What effect did the five participants have on you to

make you select that particular film? A. I don’t know. I’m not

sure what you mean. I don’t know what you mean by an

“effect”.

Q. What I’m trying to find out is why you picked that

particular film. A. Because I was going to pick one.

Q. Any film at random? A. I don’t know that it’s fair to

say “random” because I looked through twenty-five or thirty

that were offered for sale and I chose one. It’s probably not fair

to say “random”, because random you close your eyes and

choose one.

Q. Why did you choose that one? A. Because I felt if,

say, it’s pornographic film five participants would be — could

4la

Appendix E

possibly be obscene, where something else might not, I don’t

know. I chose — that was my basis for choosing it.

Q. You picked out that film and, I take it, you took it up to

a counter where somebody was standing behind a cash register,

is that correct? A. I went in, Mr. Gravett, the defendant, was

behind a counter, I asked him if they had any film. He brought

out a stack of approximately twenty-five or thirty films and I

chose [23] my film from there, paid him for it.

Q. Did you take the film with you? A. Yes, I did.

Q. Did you view the film later? A. Yes, I did.

Q. By yourself? A. I believe there was one other vice

officer with me.

Q. One other vice officer? A. Yes.

Q. Then you made an application or you prepared a

statement of charges, is that correct, after you viewed the

film? A. I believe that I prepared an application for an arrest

warrant.

Q. Eventually, after your viewing the film with another vice

officer you obtained a statement of charges? Is that a correct

statement? A. I believe it was a statement of charges. I’m not

sure what the form was.

Q. Some accusation vehicle by which you could arrest the

defendant? A. Yes, that’s correct.

Q. Now, whose money did you use to buy that film

with? A. It was advanced funds of the Police Department,

Vice Criminal Intelligence Section.

42a

Appendix E

Q. How much money did you have? [24] A. Fifteen

dollars and seventy-five cents, what was required to buy this.

Q. How much did you have in advanced funds? A. I

always have at least a hundred dollars.

Q. Sir? A. I always have at least a hundred dollars.

Q. As a matter of fact, when you went into the premises on

that particular day you viewed this film in a machine and then

went and purchased it? Isn’t that correct? A. No, that is

incorrect.

Q. Did you view any film before you purchased this

film? A. No, I did not. You mean the peep shows?

Q. Yes. A. No, I didn’t.

Q. How many times have you been in that store before you

made this particular puchase? A. I believe — I believe, twice.

Q. Now, getting back again to your purpose in buying the

film. Then it wasn’t for your own personal use? A. This was

not for my own personal use, no.

Q. Would it be fair to say it was for use in your

employment as a police officer? A. I believe that would be fair

to say.

MR. SANDLER: I have no further questions of this

witness.

43a

Appendix E

[25] CROSS-EXAMINATION

By Mr. Dominguez:

Q. Detective Fickinger, where is the store located that you

bought the film? A. At 2488 Chillum Road, Chillum, Prince

George’s County, Maryland.

Q. Do you know the title of the store, the name of the

store? a. Silver News. I believe it’s Silver News, Inc.

Q. Was there anyone else in the store besides the defendant

working — employed in the store besides the

defendant? A. None that I could see.

Q. You have indicated that you went to this store, the

Silver News, Inc. store, on November 17th. Was this your own

idea or was this a concerted effort by

Vice / Intelligence? A. This was a concerted effort by the Vice

Squad.

Q. How many other officers made arrests? A. Excuse me?

Q. How many other officers made arrests that day or that

week? A. There were seven additional arrests on the 20th of

November.

Q. Did you meet with anybody in Vice/ Intelligence before

you decided to go in the Silver News, Inc. store? Did you meet

— A. No.

[26] Q. Did you meet with Vice/ Intelligence — did you

meet and form a plan of action? A. Yes.

44a

Appendix E

Q. Did you consult with the State’s Attorney’s office before

you went down? A. Yes, sir.

Q. Who did you consult with? A. I believe, Steve

Orenstein.

Q. Is it also true that all of the other seven Vice Squad

detectives purchased films from other bookstores in Prince

George’s County using advance funds from Vice/Criminal

Intelligence? A. Yes, that is true.

Q. And all that had been planned out

beforehand? A. Yes.

MR. DOMINGUEZ: Thank you.

THE COURT: Any further questions?

MR. SANDLER: None, your Honor.

- THE COURT: Mr. Fickinger, my understanding is that you

addressed the accused, Mr. Gravett, and solicited from him

whether or not he had any movie film for sale, is that correct?

THE WITNESS: Yes.

THE COURT: And he, pursuant to your request, exhibited

to you a series of films?

THE WITNESS: Yes.

[27] THE COURT: Some twenty or more?

THE WITNESS: Yes, twenty or more.

45a

Appendix E

THE COURT: Where were you physically standing or

where was he at that time?

THE WITNESS: There’s a high counter, your Honor. He

was standing behind the counter, and the counter comes almost

to my chin level. The bottom of it is like shelving material and

they have —

THE COURT: Did anything transpire between you and the

accused during the selection of your — whatever you bought?

THE WITNESS: I don’t believe so, otiier than I may have

said, “Do you have any others?”

THE COURT: What was his reply?

THE WITNESS: He produced more. I don’t know if there

was a reply.

THE COURT: He produced more pursuant to your

request?

THE WITNESS: Yes.

THE COURT: Produced more what?

THE WITNESS: More film to select from.

THE COURT: And then you made a selection out of

approximately how many?

THE WITNESS: I would say, between twenty-five and

thirty.

THE COURT: Very well. Anything else?

46a

Appendix E

MR. SANDLER: No.

[28] THE COURT: Do you have any?

MR. DOMINGUEZ: I have one question, your Honor.

By Mr. Dominguez:

Q. Of these twenty-five and thirty films, what were the

titles, do you recall, or the general nature of the advertising on

the front of it? For example, did any of them have “Dandy and

Donald Duck” on them? A. No, they didn’t.

Q. Were any of them “Swedish Erotica”? A. The vast

majority were the “Swedish Erotica” brand.

THE COURT: You are not talking about “Dandy and

Donald Duck”, you are not asking the Court to take judicial

notice of “Dandy and Donald Duck”, are you?

MR. DOMINGUEZ: Yes, your Honor.

THE COURT: I will take it under advisement.

MR. DOMINGUEZ: No further questions.

(Witness excused)

THE COURT: You may proceed, Mr. Sandler.

MR. SANDLER: Your Honor, I believe it’s obvious from

the officer’s testimony and from the questioning by the State

that the funds used to purchase the film selected by the officer

came from an arm of the government. I believe it’s obvious from

47a

Appendix E

the very inception of the purpose of the selection of the film, and

the purchase of the film was for governmental purposes, and

that is to be used in the investigation of the alleged [29] criminal

activity and in the prosecution of the one charged with violating

a particular law.

Either under the governmental purpose of Section 423 or

under the other similar justification purpose, your Honor, taking

into consideration the fact that the State argues about our

boilerplate signs as to the intent of the distribution. Boilerplate

or not, the intent of the distributor is made available to the

customer. The State decides to refer to it as boilerplate. Well, in

our society the way we communicate is either by signs, voice

writing, or otherwise, and the intent of the possessor of the

material is made available to the public. The silence of the

purchaser, your Honor, must be construed in favor of the

defendant.

So that if at that point we have a meeting of the minds, we

have conduct that comes within the context of the language of

Section 423. And unfortunately, your Honor, because of the

broad language the statute doesn’t place the defendant on proper

notice as to what conduct on his part is prohibited so he can

prepare a proper defense. Or it’s so vague, and if you will recall

in our motion to dismiss we requested it to be dismissed because

the statute is void for vagueness, that it doesn’t put him on

proper notice as to what conduct on his part is prohibited.

That is hornbook law, your Honor. That’s what a criminal

statute must do, or either it’s void for vagueness or [30] void for

overbreadth. We have an exemption under the circumstances or

it denies to us equal protection of the law.

For either reason, your Honor, taking into consideration

the striking language in Miller v. California, —

48a

Appendix E

THE COURT: I would like a copy of that, Mr. Sandler. I

don’t have one.

MR. SANDLER: The State has the official one. I was up

there when they decided the case and got a copy of the slip

opinion that is underlined, but we have a photocopy of the

official one.

THE COURT: I assume the photocopy is just as good.

All right, go ahead.

MR. SANDLER: We would submit, your Honor, that the

evidence in this case must be suppressed in light of Section 423.

Your Honor, a trial court can’t authoritatively construe an

appellate statute. A trial court is bound to uphold —

THE COURT: You say a trial court can’t construe a

statute? I don’t agree with that. It may not be final construction,

but it can construe it.

MR. SANDLER: What I said was, your Honor, a trial

court cannot authoritatively construe a _ statute, putting

something in it that is not there or taking something out of it.

The Court is bound to uphold the constitutionality of the

statute, if it can, by any construction.

And I say that to you respectfully, your Honor, [31]

because there are recent cases that have come out on trial courts,

you deal with an ex post facto situation if you try to put

something in a statute. Only the legislature can do that or take it

out. But you have to save the constitutionality of the statute, if

you can.

49a

Appendix E

What I am saying to the Court is you must construe this

exemption in favor of the defendant in order to save the statute,

or if not it would deny him equal protection of the law. I am

suggesting the Court construe the statute by its very language

and apply it to the conduct here so that we don’t have to be

denied equal protection of the law because we don’t have an

affirmative defense under it. The only thing we have available is

the outright broad, vague language of the statute.

In addition I would ask the Court to consider the Miller v.

California situation and the new definition that we are bound by

and suggesting to the Court that is applicable to the conduct in

this case, in considering the motion to dismiss and in considering

the motion to suppress, your Honor. Thank you.

THE COURT: You say you don’t have an affirmative

defense. Of Course, the Court recognizes that the evolution of

affirmative defenses appears to be one that requires only the

accused to raise the issue, and it is an affirmative defense. If the

issue is raised, then it would be, in this instance, upon the State

to prove guilty beyond a reasonable doubt and to [32] a moral

certainty, and in most instances to negate the issue of affirmative

defense.

So I can’t say that what you have referred to as the

addendum to the New York statute would really have any effect

except from an argumentative point of view on this statute. It

would appear to me — and I haven’t heard too much from the

State yet, but maybe the State should cast some light upon what

the State considers to be bona fide governmental justification.

Do you care to proceed on this, Mr. Dominguez?

MR. DOMINGUEZ: Yes, your Honor. I have already cited

two exceptions or two situations which I felt would fall within

50a

Appendix E

the exemptions contemplated by the statute. There are cases

which are cited in the annotations following Section 423 from

which I did glean some of these examples. One is Modern Social

Education, Inc. v. Preller. That is a United States District Court

case here in Maryland.

THE COURT: What is the citation?

MR. DOMINGUEZ: 353 F.Supp 173. That’s a 1973 case.

But the problem there, your Honor, in that case was that

there was a group, which for all intents and purposes was

operating an adult book store, a center for distributing and for

selling pornographic material. They had an arrangement where

people could come in and they would sign a membership

agreement as soon as they came in and they would pay a certain

fee and they would get to see a film. It’s a peep show, by any

[33] stretch of the imagination, and what they tried to do is get

around the obscenity laws by claiming that this was a nonprofit

Organization designed to promulgate certain attitudes toward

sexual behavior, and also to promulgate the innovations in

sexual behavior by displaying these films.

The Court said in that case that you just have to look to see

whether — the Court has to hear the facts of the case and decide

whether this is a sham or whether this is a bona fide attempt at

promulgating serious social, scientific or educational purposes.

THE COURT: What did they decide?

MR. DOMINGUEZ: I believe, your Honor, they decided

— well, the issue was whether or not the police were harassing.

They brought a suit for federal injunctive relief, from my

understanding of the case.

Sla

Appendix E

: 8

MR. SANDLER: I believe I can help you on that. I was the

attorney who tried it. Your Honor, it wasn’t applicable to

Article 27. Star v. Preller dealt with Article 66A. What

happenec in that case, my client had formed what we felt were

purely educational, private, nonprofit organizations, and this is

an exemption under Article 66A that says you do not have to

submit films to the board for approval if they are shown by a

nonprofit organization, so forth and so on.

When the clubs were formed we notified the Attorney

General what we were going to do and asked for an opinion as

to [34] whether or not they would attempt to prosecute people

for failing to submit the films to the board. They said they

would, and we went into Federal Court and filed suit in 1973 to

restrain them.

The case was not decided on the facts the State is

suggesting. What happened in that case was the Federal Court

decided that they would not issue an injunction and intervene

because the issue at that point was, was there a pending State

Court proceeding and should the Federal Court interfere. We

asked for a declaratory decree in that case in addition to an

injunction.

The Federal Court decided against us and commenting on

the situation they said you can go to a State Court and if you

really prove what you say you will prove you will come within

the exemption, but we are not going to enjoin the State from

enforcing their laws.

It went to the Fourth Circuit Court of Appeals and they, in

part, reversed Judge Harvey and said he should have granted the

declaratory decree and not dismiss the case. Subsequently Miller

v. California came out and the case went up to the Supreme

52a

Appendix E

Court of the United States and these cases were sent back to the

lower courts to try — you know, confining them to the Miller

standards, and at that point all parties agreed to dismiss the

cases in Federal Court and go ahead.

But it’s not applicable here. It did not deal with [35] the

criminal statute, Article 27. It dealt with an entirely different

situation. Those were bona fide, and that statute didn’t define

“bona fide”. But because of Miller we never went for any

clarifying instructions from an appellate court. It’s not

applicable here. It’s not apropos.

I would be happy to submit the brief to the Court. The case

went on for a period of several years, because you had many

cases coming out of the Supreme Court dealing with the Federal

Court’s inability to interfere with on-going State proceedings.

The issues were entirely unrelated to what is before the Court

today. If you were to read the case in its entirety you would find

it’s not applicable.

The only thing that is strikingly similar here is the Court

said if you are what you say you are and if they decide to

prosecute you, all you have to do is show the Court you are an

educational, nonprofit organization and you don’t have to

submit the film and you won’t be found guilty, but we are not

going to enjoin the State from enforcing the law. That is not the

issue here and it, in fact, was reversed in part because the Court

should have granted the declaratory decree as to the statuts of

the parties and that is not an injunction.

MR. DOMINGUEZ: Your Honor, I never intended to tell

the Court that that case was dispositive of the issue at bar. You

asked me a question, to cite some example, and this case — all it

53a

Appendix E

did was cite an example of a situation that might [36] bring the

Modern Social Education, Inc. into the Section 423 exemption.

And that’s all I intended to cite that case for.

THE COURT: All right, gentlemen. Is there any other

argument you wish to proceed with?

MR. DOMINGUEZ: Your Honor, I would like to add also

if you read the Miller case you will see that no way does the

Supreme Court try to say that the only type of sales action

which should be scrutinized by the Court is aggressive sales

action upon unwilling recipients.

That’s all the Court was doing, was explaining, as the

Supreme Court Justices are bound to do in very flavorful

language, the type of conduct in the case which they were

deciding. That is all.

THE COURT: Very well, gentlemen. It’s lunchtime. I will

recess until 1:30.

(Whereupon, at 12:00 o’clock noon, the hearing in the

above-entitled matter was recessed, to reconvene at 1:30 o'clock

p.m., this same day).

[37]AFTERNOON SESSION

(Whereupon, at 1:40 o’clock p.m. the hearing in the above-

entitled matter was resumed).

(The Court and counsel retired to chambers and the

following proceedings were had in chambers:)

THE COURT: May the record indicate that at the

suggestion of counsel an in-camera viewing of the film entitled,

54a

Appendix E

“Plenty To Go Around” will be viewed by the Court in the

presence of the accused and his counsel of record, Messrs.

Sandler and Morse, and Mr. Dominguez representing the State.

Counsel have stipulated that the film shown was, in fact, the

subject matter of the alleged illegal conduct of the accused and

that the presence of the female court clerk is waived.

Is that correct, gentlemen?

MR. SANDLER: Yes, sir.

THE COURT: You may proceed.

(Whereupon, the motion picture film mentioned by the

Court was viewed by the Court in chambers and, at 2:40 o’clock

p.m., the hearing was recessed, to reconvene at 9:00 o'clock,

Tuesday, September 25, 1979).

(38]VOLUME II

IN THE CIRCUIT COURT FOR PRINCE GEORGE’S

COUNTY, MARYLAND

Criminal Appeals No. 20,366

STATE OF MARYLAND

vs.

CALVIN ANDRE GRAVETT,

Defendant.

55a

Appendix E

Courtroom No. 2

County Courthouse

Upper Marlboro, Maryland

Tuesday, September 25, 1979

The above-entitled matter came on for further hearing in

open court at 10:25 o’clock a.m.

BEFORE:

HONORABLE SAMUEL W. H. MELOY, Associate

Judge.

APPEARANCES:

JOHN P. DOMINGUEZ, ESQ., Assistant State’s

Attorney for Prince George’s County, appearing on behalf of the

State of Maryland. (Excused from appearing at today’s

proceedings).

BURTON W. SANDLER, ESQ. and LOUIS JAMES

MORSE, ESQ., appearing on behalf of the defendant.

PAUL GAZDAYKA

OFFICIAL COURT REPORTER

P.O. Box 401

Upper Marlboro, Maryland

20870

39) PROCEEDINGS

THE DEPUTY CLERK: C. A. 20,366, State of Maryland

vs. Calvin Andre Gravett.

56a

Appendix E

THE COURT: May the record indicate the accused, Mr.

Gravett, is present represented by his counsel, Mr. Sandler and

Mr. Morse. The State was represented yesterday by Mr.

Dominguez. He appeared if my chambers this morning and

advised that he was specially scheduled to try another case in

another courtroom in this Circuit today and asked to be

excused, and indicated to the Court that he had no further

argument to present with respect to the hearing on the

defendant’s motion to dismiss and to suppress and would submit

it to the Court for its determination. —

Is there any further argument that you wish to present to

the Court, Mr. Sandler?

MR. SANDLER: No, sir, there is not.

THE COURT: The Court is of the opinion that the

provisions of Article 27, Section 423, extend an outright

exemption in this case, noting in passing that the alleged obscene

material was obtained by Corporal Fickinger, a government

agent, and the Court rules that if the government had a right to

possess someone had a right to deliver the possession, and

accordingly will grant the motion to dismiss. This action by the

Court leaves the State free to proceed with any appeal at review

that they wish.

[40] The question of the overbreadth or the vagueness of the

section, Section 423, relative to the constitutional question will

not have to be decided by this Court. Although I might observe

in passing it would appear to this Court to be vague and

overreaching. However, the decision in this case is predicated

upon the fact that the Court at this hearing declares that the

defendant is exempt in an evaluation of the testimony proffered

with respect to the motion to dismiss and, accordingly, will

dismiss the information.

57a

Appendix E

MR. SANDLER: Thank you, your Honor.

(Whereupon, at 10:27 o’clock a.m., the hearing in the

above-entitled matter was concluded).

58a

APPENDIX F — “STATEMENT OF QUESTIONS

PRESENTED” EXCERPTED FROM PETITIONER’S BRIEF

BEFORE THE MARYLAND COURT OF SPECIAL

APPEALS

APPENDIX

THE “STATEMENT OF QUESTION PRESENTED”

CONTAINED IN PETITIONER’S BRIEF BEFORE THE

MARYLAND COURT OF SPECIAL APPEALS:

QUESTION PRESENTED

Was there legally sufficient evidence to allow the trial

court to grant the Appellee’s Motion to Dismiss on the

basis that under the facts and circumstances in this case

Article 27, Section 418, et seq. was being

unconstitutionally applied to the Appellee in violation of

his rights under the First, Fourth, Fifth and Fourteenth

Amendment to the United States Constitution?

59a

APPENDIX G — PETITION FOR WRIT OF CERTIORARI

TO THE MARYLAND COURT OF APPEALS

IN THE COURT OF APPEALS OF MARYLAND

Misc. No.

September Term, 1979

CALVIN ANDRE GRAVETT

Petitioner

vs.

STATE OF MARYLAND

Respondent

(September Term, 1979, No. 1193)

Calvin Andre Gravett, Petitioner, by his attorney, Burton

W. Sandler, respectfully petitions this Court for a Writ of

Certiorari to review the judgment of the Court of Special

Appeals of Maryland in the case of State of Maryland v. Calvin

Andre Gravett. (September Term, 1979, No. 1193).

OPINION BELOW

On May 12, 1980, the Court of Special Appeals filed an

unreported per curiam opinion reversing the decision of the

Circuit Court for Prince George’s County, the Honorable

Samuel W. H. Meloy, was the presiding Judge at the trial. The

Court of Special Appeals held that a trial court cannot properly

grant a Motion to Dismiss on proferred testimony and that the

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Appendix G

trial court’s error was procedural. There are no statutes or

authorities cited in the opinion of the Court of Special Appeals

to support its findings. (A copy of the per curiam opinion is

attached as Exhibit A).

JURISDICTION

The jurisdiction of this Court is invoked under section 12-

201 of the Courts and Judicial Proceedings Article and is within

the time limits of Rule 812(b) of the Maryland Rules of

Procedure.

QUESTIONS PRESENTED FOR REVIEW

1. Whether the trial court may grant a Motion to Dismiss

on proferred testimony and testimony, before proceeding to trial

in a case, where the Motion to Dismiss alleges in effect, a “defect

in the institution of the prosecution” and an unconstitutional

application of the statute in violation of constitutional rights

guaranteed under the First, Fourth, Fifth and Fourteenth

Amendments?

2. Whether a trial court in its discretion may under

Maryland Rule 736(e), formally Rule 725(d), determine the

manner in which it will decide to grant or deny a Motion to

Dismiss made before trial?

STATEMENT OF THE FACTS

In September, 1979, the Petitioner, Calvin Andre Gravett,

was brought to trial in the Circuit Court for Prince George’s

County upon a criminal information charging him with

distributing obscene matter in violation of Maryland Code,

Article 27, Section 418. He contended that there was “a defect in

6la

Appendix G

the institution of his prosecution” under the facts and

circumstances in this case by virtue of Article 27, Section 423.

He further contended that the prosecution was charged with

knowledge of Article 27, Section 423 and that under the facts

and circumstances in this case the prosecution was instituted

without probable cause and he was arrested without probable

cause. Petitioner raised the issues prior to a trial on the merits of

the case by a Motion to Dismiss and a Motion to Suppress

pursuant to the Maryland Rules of Procedure. Petitioner’s

counsel presented oral argument to the Court and a proffer of

testimony in connection with the Motion to Dismiss. Upon

request of the Court for testimony as to an “issue of fact”, and in

view of the fact that testimony would be the same in support of

the Motion to Dismiss as well as the Motion to Suppress,

testimony was offered only as to the suppression hearing.

The trial court after hearing testimony at the suppression

hearing, which supported the proffer of testimony made in

connection with the Motion to Dismiss, ruled and decided as

follows:

“The Court is of the opinion that the provisions

of Article 27, Section 423, extended an outright

exemption in this case, noting in passing that the

alleged obscene material was obtained by

Corporal Fickinger, a government agent, and the

Court rules that if the government has a right to

possess some-one had the right to deliver the

possession, and accordingly will grant the

Motion to dismiss.”

The Court further stated:

“The question of the overbreath or the vagueness

of the section, Section 423, relative to the

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Appendix G

constitutional question will not have to be

decided by this Court. Although I might observe

in passing it would appear to this Court to be

vague and overreaching. However, the decision

of this case is predicated upon the fact that the

Court at this hearing declares that the Defendant

is exempt in an evaluation of the testimony

proffered with respect to the Motion to Dismiss,

accordingly, will dismiss the information.”

PERTINENT STATUTORY AND CONSTITUTIONAL

PROVISIONS

In addition to the First, Fourth, Fifth and Fourteenth

Amendments to the United States Constitution, the following

statutory provisions are relevant:

Article 27, §418 of the Annotated Code of Maryland

provides:

“Any person who knowingly sends or causes to

be sent, or brings or causes to be brought into

this State for sale or distribution, or in this State

prepares, publishes, prints, exhibits, distributes,

or offers to distribute, or has in his possession

with intent to distribute or to exhibit or offer to

distribute, any obscene matter is guilty of a

misdemeanor.”

But §423 (Exemption) states:

“The prohibitions and penalties imposed in this

subtitle shall not extend to persons having bona

fide scientific, educational, governmental, or

other similar justification for possessing such

63a

Appendix G

matter, or to distributions thereof pursuant to

such justification.”

Rule 736. Motions Before Trial.

a. Mandatory Motions.

A motion asserting one of the following matters shall be

filed in conformity with this Rule. Any such matter not raised in

accordance with this Rule is waived, unless the court, for good

cause shown, orders otherwise:

J A defect in the institution of the prosecution;

ae A defect in the charging document, other than its

failure to show jurisdiction in the court or to

charge an offense which defenses can be noticed

by the court at any time;

3. An unlawful search, seizure, interception of wire

or oral communication, or pretrial identification;

4. An unlawfully obtained admission, statement or

confession;

$. A motion for joint or separate trial of defendants

or offenses.

b. Time for Filing Mandatory Motions. }

A motion filed pursuant to section a of this Rule shall be

filed within 30 days after the earlier of the appearance of the

defendant before the court pursuant to Rule 723 (Appearance-

Provision for or Waiver of Counsel), except when discovery is

furnished on an issue which is the subject of the motion, then the

motion may be filed within five days after the discovery is

furnished.

64a

Appendix G

c. Other Motions.

Any other defense, objection or request capable of

determination before trial without trial of the general issue shall

be raised by motion filed at any time before trial.

d. Content of Motions.

A motion filed pursuant to this Rule shall be in writing

unless the court otherwise directs, shall state the grounds upon

which it is made, and shall set forth the relief sought. A motion

alleging an illegal source of information as the basis for probable

cause must be supported by precise and specific factual

averments.

e. Determination.

A motion filed pursuant to this Rule, except a motion to

dismiss for failure to obtain a speedy trial, shall be determined

before trial unless the court otherwise directs in motions

involving subsection a 4 of this Rule. If factual issues are

involved in determining the: motion, the court shall state its

findings on the record.

Rule 725.

d. Hearing on Motion.

A motion before trial raising defenses or objections shall be

determined before trial unless the court orders that it be deferred

for determination at the trial of the general issue. All issues of

fact raised by such motion may be determined by the court

without-a jury on affidavit or in such other manner as the court

may direct.

(Uniform Rule 25 & Rule 725)

65a |

Appendix G

REASONS FOR GRANTING THE WRIT

Review by this Court would be desirable and in the

public interest as it is necessary for this Court to resolve the

conflict created by the decision of the lower court and the

Maryland Rules of Procedure 736, et seq, former Rule 725 et

seq, providing for motions before trial and determination of

the same prior to trial.

The Court below has ruled that a trial court may not

grant a motion to dismiss on proferred testimony. The Court

below cites no authority for its position and it would seam

that Rule 736 et seq. allows the granting of a motion to dismiss

in any manner in which the trial court shall direct or decide.

A TRIAL COURT MAY UNDER RULE 736 (1) AND

736 (f) OF THE MARYLAND RULES OF PROCEDURE

GRANT A MOTION TO DISMISS AS A RESULT OF A

DEFECT IN THE INSTITUTION OF THE

PROSECUTION AFTER CONSIDERATION OF THE

FACTUAL ISSUES PRESENTED AND EVALUATION

OF THE ENTIRE RECORD BEFORE THE COURT AT

THE TIME THE MOTION TO DISMISS IS MADE.

Rule 736 of the Maryland Rules provides as follows:

Rule 736. Motions Before Trial.

a. Mandatory Motions.

A motion asserting one of the following matters shall be

filed in conformity with this Rule. Any such matter not raised

66a

Appendix G

in accordance with this Rule is waived, unless the court, for

good cause shown, orders otherwise:

1. A defect in the institution of the prosecution;

2. A defect in the charging document, other than its

failure to show jurisdiction in the court or to charge

an offense which defenses can be noticed by the

court at any time;

3. An unlawful search, seixure, interception of wire or

oral communication, or pretrial identification;

4. An unlawfully obtained admission, statement or

confession;

5. A motion for joint or separate trial of defendants or

offenses.

b. Time for Filing Mandatory Motions.

A motion filed pursuant to section a of this Rule shall be

filed within 30 days after the earlier of the appearance of the

defendant before the court pursuant to Rule 723 (Appearance-

Provisions for or Waiver of Counsel), except when discovery

is furnished on an issue which is the subject of the motion,

then the motion may be filed within five days after the

discovery is furnished.

Rule 736(f) provides as follows:

f. Determination.

A motion filed pursuant to this Rule, except a motion to

dismiss for failure to obtain a speedy trial, shall be determined

before trial unless the court otherwise directs in a motion

involving subsection a 4 of this Rule. If factual issues are

involved in determining the motion, the court shall state its

finding on the record.

67a

Appendix G

Under prior Rule 725(d), it was provided as follows in

connection with a hearing on a motion prior to trial:

d. Hearing on Motion.

A motion before trial raising defenses or objections shall

be determined before trial unless the court orders it be

deferred for determination at the trial of the general issue. All

issues of fact raised by such motion may be determined by the

court without a jury on affidavit or in such other manner as

the court may direct.

(Uniform Rule 25 & Rule 725).

The implication from Rule 725(d) is obviously that a trial

court has total discretion as to how it will determine issues of

fact raised by a motion. It may do so on affidavits or in such

other manner as the court may direct. This implication does

not seem to have been disturbed by the new Rule 736(f). There

appears no language under Rule 736 that would indicate the

trial court does not have the discretion to determine factual

issues raised in a motion in any manner it chooses, even on

proferred testimony, provided the trial court states its findings

on the record.

CONCLUSION

For the reasons herein stated, the Petitioner respectfully

requests that this court issue a Writ of Certiorari to review the

decision of the Court of Special Appeals to determine the

important question as to whether or not a trial court can grant

a Motion to Dismiss in the manner in which it was decided in

the trial of the case before this court. It is respectfully

suggested that the decision of the court below is in conflict

with the accepted practice in the Federal Courts and other

68a

Appendix G

Courts throughout the United States in addition to being in

conflict with the Maryland Rules of Procedure.

Respectfully submitted,

s/ B.W.S.

Burton W. Sandler

Suite 600

28 Allegheny Avenue

Towson, Maryland 21204

(301) 821-6777

Attorney for Petitioner

IN THE COURT OF APPEALS OF MARYLAND

NO:

September Term, 1979

CALVIN ANDRE GRAVETT

Petitioner

STATE OF MARYLAND

Respondent

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 16th day of June,

1980, a copy of the aforegoing Petition for Writ of Certiorari

to the Court of Special Appeals of Maryland was mailed,

69a

Appendix G

postage prepaid, to Stephen Sachs, Attorney General, Office

of the Attorney General, One South Calvert Street, 14th

Floor, Baltimore, Maryland 21202; and John P. Dominguez,

Assistant State’s Attorney, State’s Attorney’s Office, Court

House, Upper Marlboro, Maryland 20870.

s/ B.W.S.

Burton W. Sandler

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.