Coble v. City of Birmingham

Decision Date30 June 1980
Docket Number6 Div. 94
Citation389 So.2d 527
PartiesJimmy E. COBLE v. CITY OF BIRMINGHAM.
CourtAlabama Court of Criminal Appeals

Ferris Ritchey, Birmingham, for appellant.

W. Otis MacMahon III, Asst. City Atty., Birmingham, for appellee.

DeCARLO, Judge.

This appeal involves a violation of § 16-18, General Code of Birmingham. Appellant was fined $350.00 and sentenced to 180 days hard labor.

The City of Birmingham charged in a Complaint that Jimmy Coble, the appellant, knowingly and unlawfully "sold an obscene book or magazine or matter entitled ... 'Special No. 20' to D. S. Luker which depicted or portrayed the following sexual conduct: Actual act or acts of homosexuality between males, homosexuality between females, sexual intercourse, fellatio, contrary to and in violation of Section 16-18 of the General Code of the City of Birmingham, Alabama, 1964, as amended." The appellant was tried in the Municipal Court without a jury, and was convicted. He appealed to the Jefferson Circuit Court.

The appellant filed, in the circuit court, a motion to suppress evidence and a motion to quash, both of which were overruled after supporting evidence was presented at a hearing prior to trial. The appellant was tried by a jury in the Jefferson Circuit Court and was found guilty as charged in the Complaint.

At the hearing on the motions, Richard Townes, Commander of the Administrative Vice Division for the City of Birmingham, acknowledged that he had discussed with Sgt. Triplett, Lt. Webb, and Officer Luker the type of bookstores in which arrests for obscenity violations would be made. Townes denied that they had decided not to make arrests of distributors of publications such as "Hustler," "Oui," "Playboy," and "Penthouse." Townes stated, "We just decided that we would enforce the City Ordinance that was pertaining to pornography." The record reveals the following:

"THE COURT: Captain, tell me what policy if any, y'all have about enforcing those laws with reference to the various places.

"THE WITNESS: The policy is to enforce it against everybody that violates the obscenity laws of the City, taking into consideration the fact that these things have to be taken as a whole, the entire magazine. As much as I may dislike a number of other magazines, I just don't feel that it's within the policy of the Birmingham Police Department to move at this time against them.

"THE COURT: Are you in effect telling me that these officers when they make an arrest go get the worst they can find?

"THE WITNESS: Yes, sir.

"Q. And that's the only arrest that you make, just against the worst that you can find?

"A. Yes, sir.

"Q. You are aware, of course, that for-Well, I withdraw that question.

"You are saying then, Captain, that it is the policy of your detail, the Vice detail, not to make arrests of publications that are sold monthly, national publications that are sold monthly no matter what may be contained within their covers?

"A. No, sir, I didn't say that.

"Q. What do you say, sir?

"A. I'm saying that we-of course, I don't-at my direction Lt. Webb and to the members in the Pornography Section are to arrest those persons who violate the City Ordinance, taking into consideration the complete text and alignment of the material contained in the total piece of the merchandise-or the worst."

James Melvin Burns, Magistrate of the City of Birmingham testified, that on June 5, 1978, he was familiar with the guidelines in the City Code for issuing arrest warrants. After viewing "Special Number 20," the witness recognized two photographs in the magazine. Burns, when asked whether he knew in June, 1978, the criteria necessary to constitute obscenity, answered, "I don't remember what my thought processes were."

Regarding the determination of probable cause, the record reveals the following:

"Q. Do you recall whether or not you took into consideration contemporary community standards in making your determination of probable cause that Special Number 20 was obscene?

"A. All I can say is I do not have any specific recollection of what I thought at the time.

"THE COURT: Did you know these guidelines, these criteria back on June-whatever this thing is dated?

"THE WITNESS: It was in the City Code. That's what I used, yes.

"THE COURT: Did you look at the book?

"THE WITNESS: At that time I probably did, sir. I don't remember specifically.

"THE COURT: Well, when you looked at the book did it come back to you?

"THE WITNESS: I can remember a photograph or two in the book, yes, sir.

"THE COURT: Well, when you looked at the book did it come back to you?

"THE WITNESS: I can remember a photograph or two in the book, yes, sir.

"THE COURT: At that time did you consider it obscene?

"THE WITNESS: Yes.

"THE COURT: Issue the warrant?

"THE WITNESS: Yes, sir.

"THE COURT: Go ahead.

"Q. In any event, Mr. Burns, when you looked at that magazine it is a fact, is it or not, that you, in making the determination whether or not to issue this warrant, to find probable cause that this magazine was or was not obscene, you did apply the three criteria set out in the City of Birmingham Ordinance, did you not?

"A. I assume so. I do not remember what my thoughts were at the time.

"Q. Then you did take into consideration the three criteria?

"A. I'm sure I did."

According to Burns, no adversary hearing was held when D. S. Luker brought to the Magistrate the affidavit which resulted in the appellant's arrest.

Counsel for the defense, questioning Burns regarding his basis for determining probable cause, was allowed to read into evidence a portion of the transcript from a previous trial involving the appellant, the appellee, and the magazine now under review, "Special Number 20." That transcript reads:

"Q. What did you use as a guide to determine what those community standards are, and what criteria did you use to determine what the community standards were prior to issuing the arrest warrant for the allegedly obscene publication?

"A. My experience in the community.

"Q. Did you call anyone that may be an expert or an authority on this?

"A. No, sir.

"Q. In other words, what you're stating is, is the determination, the final determination, that final determination is yours and not anyone else's of what community standards are?

"A. Yes, sir."

Detective Sgt. L. H. Triplett testified that he was in charge of the Birmingham Vice Division Gambling and Pornography Detail. According to Triplett, plans for arrest or investigations of employees of adult bookstores or for purchases of magazines from adult bookstores were made by him, not by his superiors, although he kept his superiors aware of his activities. The witness admitted that he discussed with his superiors the type of materials which would be purchased to secure arrests for violations of Ordinance 16-18, as amended.

Also, Triplett admitted that they decided to limit their arrests to operators of adult bookstores who sold publications such as "Special Number 20." Triplett explained this decision by stating:

"A. At this point in time myself, my captain, my lieutenant, we were all new down there. We had never been exposed to this type of material before. We were just getting guidance on what we can make a case on or what we can't make a case on. We were literally almost told that you can't make a case on other type stuff such as Hustler, Playboy, so we didn't. We decided periodically we would probably check this kind of stuff and look at it. Other than that, we probably wouldn't be able to make a case so why go through the motions and spending everybody's money.

"THE WITNESS: (W)e were told that we had to look at this thing in the long-run. First of all, we did not believe that if we took the Playboy in front of the jury we would get a conviction. We didn't want to waste our time and the State's time, everybody's time going through the motions of this. We knew we was going to be in front of a jury. You could look at the material itself. You can see the difference between the two publications.

"THE WITNESS: Playboy has articles, book reviews, record reviews, advertisements. The president of the United States gave an interview in Playboy. This kind of stuff has some kind of value. You take a thing like Special Number 20, it's just got sex from one end to the other. There's not even a place on there where it's manufactured, copyrighted, printed. It's just a title of a book and boys and girls, and boys and boys, and girls and girls. You can just look at the thing and see the difference."

Triplett testified that the decision was made to make arrests whenever publications such as "Special Number 20" could be purchased and that adult bookstores were the only places where such publications could be purchased.

Triplett denied that he and his men were instructed "not to worry about or to consider" publications such as "Hustler," "Playboy," "Oui," and "Penthouse." The witness explained that the decision to occasionally look at such publications was made; however, the decision to "ignore" those publications was not made. Although the witness never made any arrests involving those publications, the publications were purchased by his men. According to Triplett, publications such as "Hustler" are sold throughout the City of Birmingham; however, magazines such as "Special Number 20" are sold only in adult bookstores.

Triplett stated that some books which were purchased from adult bookstores had never been presented to the Magistrate for the purpose of making arrests. When asked whether those books were obscene, the witness stated:

"I know a couple of times I think we bought some and David didn't think-Officer Luker didn't think they were strong enough to have to get in front of a jury with them. When we buy them we don't really know what we've got until we get back to the office and unwrap them, because they are sealed when we purchase them."

During further questioning, Triplett denied that he had instructed the...

To continue reading

Request your trial
8 cases
  • Hunt v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 13 Diciembre 1993
    ...and (3) selectivity based on an unjustifiable standard. Elmore v. State, 445 So.2d 943 (Ala.Cr.App.1983); Coble v. City of Birmingham, 389 So.2d 527, 533 (Ala.Cr.App.), cert. denied, 389 So.2d 535 (Ala.1980); Starley v. City of Birmingham, 377 So.2d 1131 (Ala.Cr.App.), cert. denied, 377 So.......
  • M.S. News Co. v. Casado, 80-2093
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 16 Noviembre 1983
    ...Indeed it has been held by some courts that criminal prosecutions for obscenity need not be by jury trials. See Coble v. City of Birmingham, 389 So.2d 527, 533 (Ala.Cr.App.1980); Holderfield v. City of Birmingham, 380 So.2d 990, 991-93 (Ala.Cr.App.1979), cert. denied, 449 U.S. 888, 101 S.Ct......
  • Squires v. City of Saraland
    • United States
    • Alabama Court of Civil Appeals
    • 12 Enero 2007
    ...and (3) selectivity based on an unjustifiable standard. Elmore v. State, 445 So.2d 943 (Ala.Crim. App.1983); Coble v. City of Birmingham, 389 So.2d 527, 533 (Ala.Crim. App.), cert denied, 389 So.2d 535 (Ala. 1980); Starley v. City of Birmingham, 377 So.2d 1131 (Ala.Crim.App.), cert. denied,......
  • Henry v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 31 Julio 1984
    ...and that no presumption of guilt or inference of any kind should be drawn from his failure to testify.' " Coble v. City of Birmingham, 389 So.2d 527, 535 (Ala.Cr.App.), cert. denied, 389 So.2d 535 (Ala.1980) (quoting Whitt v. State, 370 So.2d 736, 739 In the case before us, defense counsel ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT