Hunt v. State of Okl., 80-2225

• Decision Date: 22 July 1982
• Docket Number: No. 80-2225,80-2225
• Citation: 683 F.2d 1305
• Parties: Dorothy Nell HUNT, Petitioner-Appellee, v. STATE OF OKLAHOMA, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1305

683 F.2d 1305

Dorothy Nell HUNT, Petitioner-Appellee, v. STATE OF OKLAHOMA, Respondent-Appellant.

No. 80-2225.

United States Court of Appeals, Tenth Circuit.

July 22, 1982.

Michael Avant-Pybas, Asst. Atty. Gen. for the State of Okl., Oklahoma City, Okl. (Jan Eric Cartwright, Atty. Gen. for the State of Okl., and David W. Lee, Asst. Atty. Gen., Chief, Crim. Div. of the State of Okl., Oklahoma City, Okl., with him on the brief), for respondent-appellant.

Don E. Gasaway, Tulsa, Okl., for petitioner-appellee.

Before DOYLE, LOGAN and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Dorothy Nell Hunt was convicted in state court of violating an Oklahoma obscenity statute that prohibits the unlawful sale of a movie showing acts of sexual intercourse or unnatural copulation, 21 Okla.Stat. § 1040.51 (1968). ¹ On a petition for writ of habeas corpus, the federal district court concluded the obscenity statute had been unconstitutionally applied to Hunt because the state court judge failed to instruct the jury on

scienter, an element of the crime. The federal judge granted a writ of habeas corpus. The State of Oklahoma appeals, claiming that the jury instructions adequately informed the jury on the issue of scienter, or alternatively that any deficiency was harmless error. Because we conclude that Hunt's right to due process was not violated, we reverse.

I. BACKGROUND OF THE CASE

The state trial record discloses that an undercover officer for the Tulsa Police Department, Lynn Jones, went to Mrs. Hunt's Tulsa apartment with Dale Taylor, a companion. In the kitchen, Dale Taylor asked Hunt if she "had some films with some good stuff in it ...." Rec., vol. II, at 111. Hunt went into her living room and returned to the kitchen doorway with her daughter and a photograph. Hunt discussed with her daughter whether Lynn Jones was the uniformed officer in the photograph. Jones told them she was not the officer pictured. Apparently convinced, the daughter went to the side of the table where Jones was seated and brought out a box containing films and magazines. The box included the film "Aphrodisia, California Orgies" (hereinafter referred to as "California Orgies"). "California Orgies" was packaged in a small container graphically depicting a woman performing fellatio.

Jones purchased "California Orgies," an additional film, three magazines, and a deck of cards from Hunt. Testimony elicited outside the jury's presence indicated the officer examined the cards, each of which portrayed other explicit sexual material, and pointed out several to Dorothy Hunt. The officer also leafed through the magazines in which sexual intercourse was depicted. Based on this examination and the graphic picture on the outside of the film container, the officer arrested Mrs. Hunt. At trial, the movie "California Orgies" was shown to the jury. Of the purchased materials, however, the movie was the only item submitted as evidence or discussed in front of the jury.

Hunt was convicted, sentenced to three years' imprisonment, and fined $15,000.00 for her sale of the movie. The Oklahoma Court of Criminal Appeals affirmed, concluding that although the trial court erred by not properly instructing the jury concerning scienter, the error was harmless. Hunt v. State, 601 P.2d 464, 469 (Okla.Cr.App.1979). The United States Supreme Court denied certiorari. 446 U.S. 969, 100 S.Ct. 2951, 64 L.Ed.2d 830 (1980).

II. THE SCIENTER INSTRUCTION

The State argues the federal district court erred when it concluded the element of scienter was missing from the instructions submitted to the jury. The State contends the jury received adequate instruction because the Information charging Mrs. Hunt, as well as the jury instructions, used the word "knowingly" in describing the conduct prohibited in 21 Okla.Stat. § 1040.51. We disagree with the State and conclude that the Information and jury instructions did not properly convey the concept of scienter to the jury.

"Scienter, a specific awareness of the contents which make the publication obscene, is a necessary element of an obscenity statute." Hanf v. State, 560 P.2d 207, 210 (Okla.Cr.App.1977); see Hamling v. United States, 418 U.S. 87, 120-23, 94 S.Ct. 2887, 2909-2910, 41 L.Ed.2d 590 (1974); Smith v. California, 361 U.S. 147, 150-54, 80 S.Ct. 215, 217-219, 4 L.Ed.2d 205 (1959). The Oklahoma Court of Criminal Appeals has ruled that scienter is incorporated into section 1040.51 in its "knowingly" requirement. Hanf, 560 P.2d at 210. See Ginsburg v. New York, 390 U.S. 629, 643-44, 88 S.Ct. 1274, 1282-1283, 20 L.Ed.2d 195 (1968); Mishkin v. New York, 383 U.S. 502, 510-11, 86 S.Ct. 958, 964-965, 16 L.Ed.2d 56 (1966). Consequently, the statute is constitutional. See Ward v. Illinois, 431 U.S. 767, 771-76, 97 S.Ct. 2085, 2088-2090, 52 L.Ed.2d 738 (1977); Hamling, 418 U.S. at 99, 121-24, 94 S.Ct. at 2898, 2909-2911. Nevertheless, the conviction of a particular defendant under section 1040.51 may be unconstitutional if the statute is improperly applied. See Hanf, 560 P.2d at 210-11.

To satisfy the scienter requirement, the prosecution must establish beyond a reasonable doubt that a "defendant had knowledge of the contents of the material he distributed, and that he knew the character and nature of the materials," Hamling, 418 U.S. at 123, 94 S.Ct. at 2910, although it is not necessary to prove that a defendant knew or believed such materials might be classified as legally obscene. Id. at 120-23, 94 S.Ct at 2909, 2910. In this case, the mere use of the word "knowingly" in the Information and jury instructions did not adequately convey the concept of scienter to the jury. As the Oklahoma appellate court explained:

"The appellant in the present case submitted three requested instructions relating to scienter, yet the only reference to scienter was in instruction No. 3, which stated that 'any person who knowingly buys, sells ... any moving picture ... which is obscene, ... is deemed guilty of a felony ...." (Emphasis added) The State argues that because the word 'knowingly' was in the information and because the jury was instructed that the State had to prove each element alleged in the information beyond a reasonable doubt, there was a sufficient instruction on scienter. This is absurd. If one followed the State's argument, there would only be two instructions necessary in any criminal case-one iterating what was set out in the information and one saying that the State was required to prove everything alleged in the information beyond a reasonable doubt."

Hunt, 601 P.2d at 468. The jury was not properly instructed that knowingly selling a moving picture which turns out to be obscene does not satisfy the scienter requirement unless the seller is aware of the nature of the contents. Smith, 361 U.S. at 153, 80 S.Ct. at 218. The required instruction, approved by the Oklahoma Court of Criminal Appeals in Hanf, supplies the missing definition:

" 'You are instructed that the words "knowingly" and/or "wilfully," as used in these instructions, require that you must find beyond a reasonable doubt from all the evidence in this case (either direct or circumstantial or both) that the defendant knew the contents of the material introduced into evidence as State's Exhibit(s) No. (s) .' "

560 P.2d at 211 (emphasis deleted). We agree with the state appellate court that the scienter instruction in this case was legally insufficient.

III.

HARMLESS ERROR AND 28 U.S.C. § 2254(d)

The Oklahoma Court of Criminal Appeals concluded that "it is clear from the evidence that (Hunt) knew the character and nature of the film when she sold it." Hunt, 601 P.2d at 469. Consequently, it held the failure to give a scienter instruction harmless because "there is no reasonable possibility that the verdict would have been different had such an instruction been given." Id. The federal district court disagreed, concluding that section 1040.51 had been unconstitutionally applied because the Supreme Court safeguard requiring a finding of scienter was not adequately included in Dorothy Hunt's case. The federal court said the state court could not speculate on what the jury would have decided in this case if a proper scienter instruction had been given, and held that the absence of a scienter instruction impermissibly imposed strict liability upon Mrs. Hunt. See Smith, 361 U.S. at 152, 80 S.Ct. at 218.

The State urges us to reject the federal court ruling and accept the state appellate court holding that the omitted instruction was harmless error. It contends the federal court exceeded its jurisdiction because it did not accord the state court conclusion of "harmless error" a "presumption of correctness" as required by 28 U.S.C. § 2254(d). ²

Limits to habeas corpus relief are imposed on federal courts by 28 U.S.C. § 2254(d), as interpreted by two recent Supreme Court opinions. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Sumner v. Mata, --- U.S. ----, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (per curiam) (hereinafter referred to as "Sumner II"). In habeas proceedings reviewing a state court conviction, section 2254(d) mandates that federal courts apply a "presumption of correctness" to state court findings of fact. This presumption of correctness is inapplicable or rebutted only when one or more of seven listed factors exist, or the federal court concludes the state court findings of fact are " 'not fairly supported by the record.' " Sumner II, at ----, 102 S.Ct. at 1304.

Federal courts must accord this presumption of correctness to findings of fact made in hearings by both state trial and appellate courts. If a federal court determines the presumption does not apply, "it must provide a written explanation of the reasoning that led it to conclude that one or more of the first seven factors listed in § 2254 were present, ... or the 'reasoning which led it to conclude that the state finding was "not fairly supported by the...