400 E. Baltimore St., Inc. v. State
| Decision Date | 08 June 1981 |
| Docket Number | No. 1500,1500 |
| Citation | 431 A.2d 682,49 Md.App. 147 |
| Parties | 400 E. BALTIMORE STREET, INC., Block News, Inc., Phillip David Long, Thomas F. Craig, Joseph D. Stephens, David Thomas Stoughton, Charles Books, Inc., Deborah Royola Redding A/K/A Deborah Royola Pierce v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Burton W. Sandler, Towson, with whom was Jerre S. Diener, Towson, on the brief, for appellants.
Patricia E. McDonald, Asst. Atty. Gen., Baltimore, with whom were Stephen H. Sachs, Atty. Gen., F. Ford Loker, Asst. Atty. Gen., William A. Swisher, State's Atty. for Baltimore City, and John Prevas, Asst. State's Atty. for Baltimore City, on the brief, for appellee.
Argued before GILBERT, C. J., and THOMPSON and WILNER, JJ.
Md.Ann.Code art. 27, § 418 provides, in relevant part, that every person who knowingly "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." Section 423 of that article, however, states that the "prohibitions and penalties imposed in this subtitle (which includes § 418) 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."
After a non-jury trial in the Criminal Court of Baltimore, appellants were convicted of having violated § 418, for which they were each fined $500. In an effort to overturn those convictions, they contend, first, that the court failed to make the necessary finding that the materials in question were obscene, and second, that § 418, when read in conjunction with § 423 and in the light of controlling constitutional limitations, is invalid, both as written and as applied to their activity. There is merit in their first contention but none in their second.
The cases against appellants, which were consolidated for trial, proceeded upon an agreed statement of facts, supported by certain agreed exhibits. The evidence, so produced, established the following:
(1) On February 28, 1979, police officer Danny Brown walked into a bookstore at 420 E. Baltimore Street owned by appellant Block News, and, for $6.00 each, purchased from appellant Long, the clerk managing the store, two magazines entitled "Pretty Girl Film Review," issues No. 3 and No. 4.
(2) On May 9, 1979, police officer Melvin Kelbaugh also frequented that store and, for $7.50, purchased from appellant Craig, the clerk then in charge, a magazine entitled "Swedish Erotica," issue No. 22.
(3) On May 15, 1979, police officer Eric Husok entered a bookstore located at 1827 N. Charles Street owned by appellant Charles Book, Inc., and, for $9.95, purchased from appellant Stephens, the clerk in charge, three magazines "Wet," "Hot Baby," and "Route Sixty Sex."
(4) On June 4, 1979, police officer Bruce Patton went to a bookstore at 400 E. Baltimore Street owned by appellant 400 E. Baltimore Street, Inc., where, for $6.00, he purchased from appellant Stoughton, the clerk in charge, a magazine entitled "Swedish Erotica," issue No. 23.
(5) On November 16, 1979, officer Husok visited the store at 420 E. Baltimore Street (appellant Block News) where, for $6.00, he purchased from appellant Redding (a/k/a Pierce), the managing clerk, a magazine called "American Erotica."
(6) In each instance, the officer promptly took the magazine(s) to a judge of the District Court who found them to be obscene. Based upon those determinations, the instant charges were filed.
(7) In each instance, the police officer, dressed in mufti, entered the store, wandered about, selected the magazine(s) he wanted, took them to the clerk, and purchased them for the posted price. The magazines on display, including those purchased, were wrapped in cellophane, permitting the browsing customer to see the covers but not the inside pages.
(8) There were, throughout the stores, signs stating that "(t)he material sold in this store is sold only for scientific, educational, governmental or other similar justification and the customers agree that they are purchasing these materials only for scientific, educational, governmental or other similar justification," or words of similar import. No one asked the officers whether, in fact, they were purchasing the magazines for any of those purposes; nor did they volunteer their purpose in making the purchase. The individual appellants, if called to testify, would have stated that, had the officers told them that they (the officers) were not buying the magazines for the reasons set forth on the signs, the appellants would not have accepted their money.
(9) The three stores hold themselves out as "adult" book stores and are located in areas devoted or catering to "adult entertainment." 1 The magazines purchased by the officers were fairly representative of the merchandise on display and offered for sale at the three stores.
(10) The policemen used public funds to pay for the magazines. There was
The convictions rested upon these facts, upon the magazines purchased by the officers, and upon photographs of the signs posted in the stores (see P 8 above), the magazines and photographs being admitted into evidence without objection.
In this appeal, appellants complain:
"I. The appellants were denied due process of law and equal protection of the laws in violation of their constitutional rights under the First, Fifth and Fourteenth Amendments, when the Trial Court found the appellants guilty on the basis that the cases were tried on the theory that the obscenity of the materials was assumed.
II. The Trial Court erred in finding that the appellants did not come within the exemption of Article 27, Section 423, thereby denying to appellants due process of law and equal protection of the law under the Fifth and Fourteenth Amendments to the United States Constitution.
III. Article 27, Section 418 denied to appellants equal protection of the law because it creates an arbitrary and capricious classification.
IV. Article 27, Section 418, is inoperable and unenforceable because on its face it recognizes that obscene material has scientific, educational, governmental or other similar justification some of the elements, that the Supreme Court in Miller v. California mandated material cannot possess in order to come within the ambit of the First Amendment."
Three proceedings were held in the trial court. The first, on March 25, 1980, was nominally for the purpose of considering appellants' several motions to suppress the magazines and to dismiss the charges. Those motions, virtually identical in each case, rested on essentially the same grounds that the underlying statutes were unconstitutional for a variety of reasons, that the charges were vague and insufficient, and that the magazines (and their distribution) were constitutionally protected. It was agreed at that proceeding that, if those motions were denied, the case would proceed before the court, sitting without a jury, on an agreed statement of facts, and that the court would take the entire matter sub curia. Pursuant to that agreement (and without objection), the court made the necessary inquiries under Maryland Rule 735d, accepted from appellants their waiver of a jury trial, and had placed in the record the agreed statement and exhibits recounted above.
The second proceeding, which occurred on June 16, 1980, was taken up with discussion of the various legal issues raised by appellants. The primary thrust of appellants' argument was that, even if obscene, by virtue of the signs scattered around the stores the magazines and their distribution were exempt from criminality under § 423. In that limited context, appellants expressed no objection to the court assuming that the magazines were, in fact, obscene, their point being that, because § 423 permitted obscene material to be exhibited and sold for certain purposes, it made no difference whether they were obscene. They made clear, however, that they were not conceding obscenity in the event the court rejected their exemption argument. Again, the court held the matter sub curia.
Judgment day was November 3, 1980. 2 The court, after noting that the "key issue" was an interpretation of § 423, observed that the cases "were tried on the theory that the obscenity of materials was assumed and that the defendants ... could not be found guilty of these charges because of the application of the exemption." That, as we have noted, had been the primary issue argued by appellants, both orally and in the extensive memoranda supplied to the court, although at the June 16 hearing, defense counsel made clear to the court that "(i)f you decide against us on a motion for judgment of acquittal then you as a finder of fact must make a determination by determining on a contemporary community standard ... what would be in the minds of the jury." It is evident from the record, however, that the court omitted to make that ultimate finding. Although it characterized the magazine covers as "sexually explicit" and concluded that such cover scenes were sufficient to alert appellants "that the material inside may be obscene" (emphasis supplied), the court never discussed the criteria necessary for a finding of obscenity and never actually made a finding that the magazines were, in fact, obscene. After finding that the exhibition and distributions were not protected by § 423, the court simply entered sentence, and thus forgot that § 423 has no application and is entirely irrelevant unless the material is first found to be obscene under § 418.
It is not necessary, of course, for a trier of fact to announce its...
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