# Petition — Gravett v. Maryland

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0640%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 994

## Text

e |

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?

i

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

iv
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

7

l

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

2

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

rg

3

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

4

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). *

5

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.

7
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

4

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. ‘

9

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).

10

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.

1]
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
V.
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

2a

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.

s

3a

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.

4a

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?

Sa

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

6a

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

7a

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.

8a

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.

9a

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
v.

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
V.
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:

l.

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,

(c) The said statutory provisions are void for vagueness
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.

(c) It is respectfully submitted that this Defendant cannot
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

a

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 '
8

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

8
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

8
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).

ye

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

60a

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

62a

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.
é
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.

I.

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
v.
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0640%3A1. Public record. Not legal advice.