Opposition Brief — Thomas A. Ayre v. State of Maryland

— LIDNRANKY Poier FN

SUPREME COURT, U. & hit 'D

— ee

In THE MICHAEL ROSA, day

Supreme Court of the United States

OcToBER TERM, 1973

No. 73-2008

THOMAS M. AYRE,

Petitioner,

v.

STATE OF MARYLAND,

Respondent.

ON Writ oF CERTIORARI TO THE CRIMINAL CouRT

OF BALTIMORE

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Francis B. Burcu,

Attorney General

of Maryland,

CLARENCE W. SHAEP,

Assistant Attorney General.

Chief, Criminal Division.

Georce A. EICHHORN,

Assistant Attorney General.

One South Calvert Street.

Baltimore, Maryland 21202,

383-2737

Attorneys for Respondent.

— . —— ꝶaTꝗW——— —

TABLE OF CONTENTS

PRELIMINARY COMMENT S. . .

r —ͤ »

JURISDICTION OF THE Cour. . . . .

QUESTIONS PRESEN TED. ..... . .. . . . .

eee . ..

STATEMENT OF THE CASE. . .

STATEMENT OF Facrs. .. . . . . .

ARGUMENTS:

I.

II.

III.

IV.

The charging document was sufficient

to charge Petitioner with possession

of an obscene magazine with the intent

6 COTE 33—

The prohibitions of Article 27, Section

418, are not vague and over-broad

so as to unduly restrict Petitioner’s

First Amendment right to freedom of

enpreasion. ..

Petitioner was not denied the right

to a jury trial in the present case

where Maryland law precluded the judge

sitting in the Criminal Court of Balti-

more from sentencing Petitioner to any

more than the one hundred dollar

fine (and costs), which penalty had

been imposed at the District Court

CC770—— ̃ —

The statute under which Petitioner was

convicted which exempted from pros-

ecution certain persons such as em-

PAGE

ma O NY —

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3

LD cite iret hts

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ployees of theatres did not deny him

equal protection of the laws. . . . 11

— D———D——“f—“—“———T—.—“—.x.xʃx.-———ʃññ 13

TABLE OF CITATIONS

Cases

Baldwin v. New York, 399 U.S. 66 (1970).............. 10, 11

Ebert v. Maryland State Board of Censors, 19

J UI iaclaccisitacsensianinessniinticnienaaticnpiesinie 7,8,9

Gray v. State, 216 Md. 410 (1958). . 5

Hamling v. United States, — U.S. — 94 8.

TT 5, 8

Jenkins v. Georgia, U.S. — 94 S. Ct.

rc 8

Lank v. State, 219 Md. 433 (1959) . ... . . . 5

Miller v. California, 413 U.S. 15 (1973) . 7, 8, 9

Moon v. Maryland, 398 U.S. 319 (1970). 10

North Carolina v. Pearce, 395 U.S. 711 (1969) 10

State v. Roll and Scholl, 267 Md. 714 (1973)......... 10

United States v. Carll, 105 U.S. 611 (1882)............ 6

Village Books v. Marshall, 263 Md. 76 (1971),

reaffd by Md. Ct. of Appeals in 269

Md. 748 (1973) after being vacated by this

Court in 413 U.S. 911 (1973). .. . . .. 9

Village Books, Inc. v. State, — Md. App.

— (1974), 323 A. 2d 698 (1974) . . 7,8

Woodruff v. State, 11 Md. App. 202 (1971). 7

iil

Statutes

Annotated Code of Maryland:

Article 27—

United States Code:

Title 28—

.

United States Constitution:

— Eee

Fifth Amendment

Sixth Amendment.

Fourteenth Amendment

Rules

Maryland Rules of Procedure:

.

Supreme Court Rules:

Z

Miscellaneous

Black's Law Dictionary, 4th Ed...........

( UP) 555*r*

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PAGE

— 3, 12

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1973

No. 73-2008

THOMAS M. AYRE,

Petitioner,

v.

STATE OF MARYLAND,

Respondent.

ON Writ oF CERTIORARI TO THE CRIMINAL COURT

OF BALTIMORE

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

PRELIMINARY COMMENTS

This Brief in Opposition to Petition for Writ of Cer-

tiorari is filed pursuant to the request of this Honorable

Court.

OPINIONS BELOW

On November 30, 1973, Judge Charles D. Harris, sitting

in the Criminal Court of Baltimore City, found Petitioner

guilty in Criminal No. 3701598 of possession of obscene

materials with the intent to sell them under Maryland

Code, Article 27, Section 418. Petitioner then applied to

2

the Maryland Court of Special Appeals for a Writ of Cer-

tiorari and the petition was denied without comment on

February 7, 1974. Thereupon, Petitioner applied to the

Maryland Court of Appeals, and on April 11, 1974, that

Honorable Court denied the Petition for Writ of Certiorari

for the reason that “there has been no showing that

review by certiorari is desirable and in the public in-

terest”. A copy of the Order of the Court of Appeals deny-

ing certiorari has been set out in Appendix “B” in

Petitioner’s brief.

JURISDICTION OF THE COURT

Petitioner has invoked the jurisdiction of this

Honorable Court pursuant to the provisions of Title 28 of

the United States Code, Section 1257.

QUESTIONS PRESENTED*

I. Whether or not the charging document was suf-

ficient to charge Petitioner of the crime of which he was

convicted?

II. Whether or not the prohibitions of Article 27, Sec-

tion 418, are vague and over-broad, so as to unduly

restrict Petitioner’s First Amendment Right to freedom of

expression?

III. Whether or not Petitioner was denied his right toa

jury trial in the case where the judge, sitting in the

Criminal Court of Baltimore, was precluded from senten-

cing Petitioner to any more than the $100 fine and costs,

which penalty had been imposed at the District Court

level?

* Although Petitioner has listed some seven questions,

t has couched all of Petitioner’s questions in terms

of the four questions listed in this Brief in — to Peti-

tion for Writ of Certiorari.

Berne 2

f

3

IV. Whether or not the statute (Article 27, Section 418),

under which Petitioner was convicted, denied him equal

protection of the law in that there are exempted from

prosecution certain persons such as employees of

theatres?

STATUTES INVOLVED

Petitioner contends that the First, Fifth, Sixth and

Fourteenth Amendments to the United States Constitu-

tion are involved. Petitioner also maintains that Sections

417, et seq., of the Maryland Code are involved.

STATEMENT OF THE CASE

Petitioner was charged in the District Court of

Maryland with possession of an obscene magazine with

the intent to sell same under Article 27, Section 418 of the

Maryland Code. On August 9, 1973, Petitioner was tried

before Judge Edgar P. Silver in the District Court of

Maryland, found guilty, and fined one hundred dollars.

Petitioner then appealed to the Criminal Court of

Baltimore City and filed a prayer fora jury trial and a mo-

tion to dismiss the charge against him. The case came on

for a hearing on October 29, 1973, before Judge Charles D.

Harris. Judge Harris denied both the request for a jury

trial and the motion to dismiss. The trial of the matter

took place on November 30, 1973. Judge Harris found

Petitioner guilty and imposed the same fine as was im-

posed at the District Court level.

As is recanted under “Opinions Below”, supra, both

the Maryland Court of Special Appeals and the

Maryland Court of Appeals have denied Petitioner’s

Writs of Certiorari to those respective courts.

a

ART I TEL

— — —

1

STATEMENT OF FACTS

On June 26, 1973, at approximately 12 noon,

Baltimore City Police Sergeant Donald Daugherty went

to the Baltimore News Center at 428 East Baltimore

Street, in Baltimore City. There he purchased from

Petitioner, who was behind the counter at the front of

the store, a magazine entitled “The Sex Scene”. (At the

request of this Honorable Court, Respondent has

delivered to this Court the magazine in question and a

copy of the trial transcript, which transcript was typed

through the efforts of Petitioner.)

ARGUMENTS

I.

THE CHARGING DOCUMENT WAS SUFFICIENT TO CHARGE

PETITIONER WITH POSSESSION OF AN OBSCENE MAGAZINE

WITH THE INTENT TO SELL SAME.

Petitioner maintains that the charging document

(Arrest Warrant) failed to set forth a crime in that it

charges possession with intent to sell, whereas the

crime under the statute prohibits possession with intent

to distribute. Respondent submits that in this question

(as with all four questions presented by Petitioner) no

substantial federal question has been presented

(Supreme Court Rule 19), nor has Petitioner shown a

conflict between existing Maryland law and existing

constitutional law as enunciated by this Honorable

Court. Therefore, this question, and the other three

questions, are not properly reviewable by way of cer-

tiorari to the Supreme Court of the United States.

Notwithstanding this, Respondent would point out

that the charging document alleges that Petitioner ‘‘un-

lawfully and knowingly did possess obscene and in-

decent books, drawings, pamphlets, pictures, etc., with

intent to sell in Baltimore City, State of Maryland”.

5

Black’s Law Dictionary, 4th Ed., defines the word

“distribute” to mean: To deal or divide out in propor-

tion or in shares”. It i therefore clear that the word

“sell” used in the charging document comes within the

broader term of “distribute”. Hence, the charging docu-

ment was sufficient in this regard.

Petitioner also alleges that the charging document is

insufficient because it does not specifically identify the

material alleged to be obscene. The charging document

refers to “indecent books, drawings, pamphlets, pic-

tures, etc.”. The trial transcript indicates that a sale

took place wherein the magazine in question was sold

to police authorities. Therefore, under Maryland Rule

728, Petitioner had a right to inspect at a reasonable

time prior to trial, all of the items which were obtained

by the police and which could or would be used in

evidence against him. Therefore, Petitioner has had the

means available to him to ascertain what, if any,

evidence the prosecution authorities intended to use

against him so as to prove an intent to sell obscene

materials. Therefore, there would appear to be no pre-

judice to Petitioner in this respect. The essential pur-

pose to be kept in mind in charging a defendant with

criminal conduct is ‘‘two-fold, that is the charge must so

characterize the crime and describe the particular

offense ‘as to put the accused on notice of what he is

called upon to defend and to prevent a future prosecu-

tion for the same offense’. Gray v. State, 216 Md. 410,

415[1958]” Lank v. State, 219 Md. 433 (1959), at page 436.

The following quotation from Hamling v. United States,

— US. — 94 S. Ct. 2887 (1974), at page 2907, is par-

ticularly applicable:

“It is generally sufficient that an indictment set

forth the offense in the words of the statute itself,

as long as ‘those words of themselves fully, direct-

ly, and expressly, without any uncertainty or am-

7

5

n

r

6

biguity, set forth all the elements necessary to con-

stitute the offense intended to be punished.

(Citing, inter alia, United States v. Carll, 105 US.

611 (1882).)

Respondent also asserts that the word “etc.” does not

render the charging document defective and merely is a

generic term to indicate materials which were likened to

previously referred to books, drawings, pamphlets and

pictures. Because the magazine falls within the

category of books, the addition of “etc.” does not affect

the validity of the charging document.

Therefore, the charging document was sufficient to

charge Petitioner of the crime of which he was con-

victed.

Il.

THE PROHIBITIONS OF ARTICLE 27, SECTION 418, ARE NOT

VAGUE AND OVER-BROAD SO AS TO UNDULY RESTRICT

PETITIONER’S FIRST AMENDMENT RIGHT TO FREEDOM OF

EXPRESSION.

Petitioner maintains that Article 27, Section 418, is

vague, over-board and constitutes a prior restraint con-

trary to the First Amendment of the United States Con-

stitution. Section 418, of Article 27, provides as follows:

“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 this State

prepares, publishes, prints, exhibits, distributes, or

offers to distribute, or has in his possession with in-

tent to distribute or to exhibit or offer to distribute,

any obscene matter is guilty of a misdemeanor.”

Respondent respectfully submits that “obscene” does

not have a vague or over-board meaning and is ade-

quately defined under existing Maryland statutes and

case law. The opinion of the Court of Special Appeals of

7

Maryland in Ebert v. Maryland State Board of Censors,

19 Md. App. 300 (1973), holds that it is not necessary

that the individual states desiring to regulate obscene

material now enact new statutes (in light of Miller v.

California, 413 U.S. 15 (1973), and the accompanying

cases). Ebert points out that existing statutes as con-

strued before Miller, or thereafter, may well be ade-

quate. As that Court said in Village Books, Inc. v. State,

—— Md. App. — 323 A.2d 698 (1974), at page 701:

“What we did in Ebert with respect to Code

[Maryland], Article 66A, and what we do in this

opinion with regard to Code, Article 27, Section 418

and Section 418A, is to follow the dictates of the

Supreme Court as to the basic guidelines for the

trier of fact under the reformulated test for the

determination of obscenity announced in Miller.”

See also Woodruff v. State, 11 Md. App. 202, 205 (1971),

wherein the Maryland Court of Special Appeals points

out that the Maryland courts, trial and appellate, are

bound by the definition of obscenity as enunciated by

the Supreme Court of the United States, and that the

Maryland Legislature intended to use the word

“obscene” to mean that which the word “obscene”

means in the prevailing leading legal thought. Hence,

Maryland case law defines “obscene” as it is defined by

the United States Supreme Court. Ebert sets out “basic

guidelines” for the trier of fact in determining whether

contested materials are obscene. They are:

(a) whether ‘the average person, applying contem-

porary community standards’ would find that the

work, taken as a whole, appeals to the prurient in-

terest, * ,

b) whether the work depicts or describes, in a

patently offensive way, sexual conduct specifically

defined by the applicable state law, and

8

e) whether the work, taken as a whole, lacks

serious literary, artistic, political, or scientific

value.” Miller, — U.S. at 93 S. Ct. at 2615

(citations omitted).

Thus, Section 418 is not vague or over-broad. Nor does

the statute constitute a prior restraint in light of Miller

as interpreted by Ebert so long as there is present the

“patently offensive ‘hard-core’ sexual conduct”

specifically defined by Maryland case law.

Petitioner also alleges that Section 418 fails to define

hard-core sexual conduct. Respondent would direct this

Honorable Court’s attention to Ebert, supra: |

“Existing state statutes ‘as construed heretofore or

hereafter, may well be 6 * Citing Miller,

page 2615. .

Ebert further points out that the Supreme Court made

clear that the applicable state statute may contain the

required definitions either as written or authoritatively

construed”. Although the Ebert opinion dealt with the

approval of films by the Maryland State Censor Board

‘ under the licensing regulations of Article 66A, the

holding still defines obscenity under Maryland law in

light of Miller. The Board may disapprove any film,

applying the standards under the definition set out as

per Ebert. See especially Hamling, supra, Village

Books, Inc., supra, and Jenkins v. Georgia,. US.

— 94 S. Ct. 2750 (1974).

Respondent would emphasize that Petitioner has in

no way shown a conflict between Maryland case law

and the Supreme Court decisions in Miller (and its

siblings), or Hamling or Jenkins. Therefore, Section

418, as construed by Maryland case law, with the back-

drop of Miller, does specifically define the obscene

material which it prohibits.

9

Petitioner also maintains that there was no usable

definition of obscenity at the time of the trial (October

29, 1973 and November 30. 1973). and that the indicial

interpretation given Section 418 at the time of trial

could not be retroactive so as to apply to the offense at

bar. The Miiler case was decided June 21, 1973, and the

offense at bar was alleged to have taken place on June

26, 1973. The answer to Petitioner’s contention in this

regard is that since the Miller case preceded the offense,

the guidelines set forth in Miller (as repeated in Ebert)

would therefore apply to the offense at bar and to give

ample notice to the offender; nor was Section 418

without prior case law interpretation. See Village Books

v. Marshall, 263 Md. 76, (1971) re-aff'd by the Maryland

Court of Appeals in 269 Md. 748 (1973) after being vacated

by this Court in 413 U.S. 911 (1973).

III.

PETITIONER WAS NOT DENIED THE RIGHT TO A JURY TRIAL

IN THE PRESENT CASE WHERE MARYLAND LAW PRECLUDED

THE JUDGE SITTING IN THE CRIMINAL COURT OF

BALTIMORE FROM SENTENCING PETITIONER TO ANY MOKE

THAN THE ONE HUNDRED DOLLAR FINE (AND COSTS), WHICH

PENALTY HAD BEEN IMPOSED AT THE DISTRICT COURT

LEVEL.

Petitioner maintains that he was entitled to a jury

trial when he requested same at the Criminal Court of

Baltimore level below. According to Petitioner, Judge

Harris denied his request for a jury trial because the

sentence below (one hundred dollars and costs) was less

than the requisite six months or more sentence which

would have entitled him to a jury trial. Additionally,

Judge Harris imposed the same sentence at the

Supreme Bench level as had been imposed at the Dis-

trict Court level.

10

Respondent respectfully asserts that Judge Harris

was correct in his denial of Petitioner’s request for a

jury trial. It is clear that had Petitioner been subject to

a sentence of six months or more, he would have had

the right to a jury trial. See Baldwin v. New York, 399

U.S. 66, 69 (1970). However, when Petitioner appeared

before Judge Harris on his appeal, which entitled him

to a trial de novo, Judge Harris indicated that he was

denying the jury trial since the penalty imposed in the

District Court was a one hundred dollar fine and costs

and hence he was of the opinion that he could not in-

crease the sentence. Judge Harris denied the request for

a jury trial because he was precluded from increasing

the penalty beyond a six months period, which would

have entitled Petitioner to a jury trial. See Maryland

Code Article 27, Section 424, which provides a max-

imum penalty of one year and one thousand dollars.

Additionally, Section 424 provides that a subsequent

violation is subject to incur a maximum of five years

and a five thousand dollar fine.

An analogous situation occurred in State v. Roll and

Scholl, 267 Md. 714 (1973), wherein two contemnors had

been sentenced in contempt proceedings each to

sentences of four months and sixteen days. The Court

of Appeals, in remanding the cases for further

proceedings, pointed out that if each individual were

later to be found in criminal contempt, the sentence im-

posed could not exceed the originally imposed four

months and sixteen days. The Court of Appeals referred

to North Carolina v. Pearce, 395 U.S. 711 (1969), which

held that when a conviction is reversed and a person

tried a second time, he may not receive a greater

sentence than was imposed at the first trial unless there

affirmatively appears identifiable conduct on the part

of the defendant occurring after the time of the original

11

sentencing. See also Moon v. Maryland, 398 U.S. 319

(1970). Therefore, in the present situation, as there ap-

parently existed no new reasons why Judge Harris

might impose a harsher sentence than was imposed at

the District Court level, Judge Harris could only impose

the previously imposed sentence below, which sentence

was below the six months threshold in Baldwin.

Nor is there any merit in Petitioner’s contention that

if Petitioner were subsequently convicted of the same

offense, he would be subject to a possible five years

imprisonment and a fine of five thousand dollars. At

the time Petitioner appeared before Judge Harris, as

is pointed out above, he was subject only to a fine of one

hundred dollars and costs, and Petitioner was in no

way subject at that time to a greater penalty than that

imposed at the District Court level. The possibility that

future conduct by the Petitioner might, coupled with the

conviction at bar, subject him to a possible penalty of

five years and five thousand dollars, was not a reality

at the time he appeared before Judge Harris, and hence

he was not subject to the five year term and five thou-

sand dollar penalty.

Therefore, Respondent would emphasize that there is

no substantial federal question, nor is there a conflict

between the application of Maryland law and existing

constitutional law.

IV.

THE STATUTE UNDER WHICH PETITIONER WAS CONVICTED

WHICH EXEMPTED FROM PROSECUTION CERTAIN PERSONS,

SUCK AS EMPLOYEES OF THEATRES, DID NOT DENY HIM

EQUAL PROTECTION OF THE LAWS.

Respondent would first call this Honorable Court’s

attention to the fact that although Petitioner appears to

4

7

12

have raised this issue in the Criminal Court of

Baltimore (see Petitioner's Appendix at pages A3 and

A5), he did not present this issue to the Maryland Court

of Special Appeals or to the Maryland Court of Appeals

when he sought review by way of certiorari to those

courts. Hence, the matter is not reviewable by the

Supreme Court of the United States as Petitioner has

not preserved this issue in that he has not given the

Maryland appellate courts an opportunity to decide

same.

Petitioner has reference to Maryland Code Section

417, whereby, in effect, motion picture theatre

employees who are not officers of a theatre and have no

financial interest therein, are exempt from prosecution

under Section 418. Petitioner also makes reference to

Section 423, which exempts from prosecution certain

bona fide scientific, educational and governmental in-

stitutions. The exemption for bona fide governmental,

scientific and educational institutions is so clearly dis-

tinguishable from Petitioner’s situation, wherein none

of these defenses were shown, that little comment is

called for. Additionally, Petitioner in no way below

showed that the Maryland Legislature had no rational

basis to distinguish employees of theatres from per-

sons in Petitioner’s position who are selling certain

materials in stores.

Again, Petitioner has shown no substantial federal

question, nor has he shown a conflict between

Maryland law ar: constitutional law as espoused by

this Honorable Court.

13

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this Petition for Writ of Certiorari to the Criminal

Court of Baltimore should be denied.

Respectfully submitted,

FRaANcis B. Burcu,

Attorney General

of Maryland,

CLARENCE W. SHarpP,

Assistant Attorney General,

Chief, Criminal Division,

Georce A. EICHHORN,

Assistant Attorney General,

One South Calvert Street,

Baltimore, Maryland 21202,

383-3737

Attorneys for Respondent.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 24 day of October,

1974, I served a copy of Brief in Opposition to Petition

for Writ of Certiorari in the above entitled case, by

depositing same in the United States mail, postage

prepaid, to

William E. Seekford, Esq.

Suite 507, 102 West Pennsylvania Avenue

Towson, Maryland 21204

counsel for Petitioner.

GEORGE A. EICHHORN,

Assistant Attorney General.