Davison v. State

Decision Date07 July 1971
Docket NumberNo. 40208,40208
Citation251 So.2d 841
CourtFlorida Supreme Court
PartiesDonn E. DAVISON, Appellant, v. STATE of Florida, Appellee.

John F. Roscow, III, of Scruggs, Carmichael, Tomlinson, Roscow & Pridgeon, Gainesville, for appellant.

Robert L. Shevin, Atty. Gen., Raymond L. Marky and Ronald W. Sabo, Asst. Attys. Gen., for appellee.

CARLTON, Justice.

Appellant, an outdoor theatre operator, was convicted by a jury of violating Fla.Stat. § 847.013, F.S.A. by knowingly admitting a minor for a monetary consideration to an exhibition of motion pictures harmful to minors. Through various motions, appellant consistently attacked the constitutionality of the statute below; the denial of these motions laid the predicate for jurisdiction in this Court. Article V, Section 4(2), Florida Constitution, F.S.A. Through our decision today, we affirm the judgment entered against appellant by the Court of Record for Alachua County.

The factual circumstances of the offense warrant little elaboration. On the evening of February 12, 1970, Robert Hooten, age 15, stopped his car at the ticket booth of the Dragon Drive-In Theatre located in Alachua County. The attendant (appellant was operating the concession stand) accepted the proffered admission price without requesting identification or making inquiry as to age. Hooten was admitted into an exhibition of 'The Daisy Chain,' 'Kiss Me Quick,' and previews of 'The Secret Sex Lives of Romeo and Juliet.' A Sheriff Department investigator had supplied Hooten with the admission price in advance; this investigator followed the boy into the Drive-In in a separate car. On February 14, appellant was arrested for violation of Fla.Stat. § 847.013, F.S.A., and prints of the films shown were taken pursuant to warrant. Appellant appeals from his subsequent jury conviction.

The points on appeal may be divided logically between those relating to events at trial and those relating to the constitutionality of the statute.

Fla.Stat. § 847.013, F.S.A. provides that it is unlawful to 'knowingly exhibit' a harmful motion picture to a minor. Appellant premised one aspect of his defense upon the theory that he had given bona fide express instructions to the ticket booth attendants on the necessity for checking identifications; therefore, the exhibition was not 'knowingly made.' The trial judge accepted a jury instruction reflecting this theory of defense.

But appellant complains that when the attendants were on the witness stand, proffers of their testimony relating to the receipt of instructions were refused. It is contended that this was in error because this 'corroborating' testimony was essential to the defense. We fully agree that a defendant is entitled to have his employees testify as to instructions given them. However, we note that the proffered testimony was not presented as being 'corroborative' at the time of the proffer since appellant had not yet testified. The proffer was not renewed subsequent to appellant's testimony, which would have been acceptable procedure. Both attendants were allowed to testify as to their methods of checking identification, and appellant testified as to his instructions to them. This testimony, given by the attendants and appellant, was uncontroverted by the State. The procedures used by the attendants and the instructions given by appellant were weighed in the balance by the jury and found wanting. We find no reversible error here.

Appellant also contends that the trial court committed reversible error because the jury was allowed to view certain still photographs of scenes from a movie which was not viewed by the jury and thus stricken from evidence. The Sheriff's Department took numerous still photographs from 'The Daisy Chain,' 'Kiss Me Quick' and the previews of 'The Secret Sex Lives of Romeo and Juliet,' as these films were being shown on the screen at the Dragon Drive-In. These were admitted into evidence. On the day of the trial, the jury was shown the 'Romeo and Juliet' previews and the movie, 'The Daisy Chain.' 'Kiss Me Quick' was not shown. The trial court ordered the print of the film 'Kiss Me Quick' removed from the exhibits because it had not been seen; he did this pursuant to a timely objection by appellant. However, appellant made no move to object to the stills from 'Kiss Me Quick'. Having failed to object to the error he now complains of, the appellant is precluded from asserting this as a ground for reversal. York v. State, 232 So.2d 767 (4th D.C.A., Fla.1969).

Appellant presents arguments against the constitutionality of Fla.Stat. § 847.013, F.S.A. which reach beyond the pertinent facts, of this case as stated by appellant and agreed upon by the State. We do not approve of this manner of argument. Appellant will be held precisely to those assignments of error raised as points on appeal.

Appellant's first point relating to alleged unconstitutionality is that:

'The cited statute provides for an arrest and seizure of questioned material without notice and without a prior judicially supervised adversary hearing to determine whether probable cause exists for such arrest and seizure.'

We do not find this to be the case. This is not a censorial action; 1 it is a prosecution for a criminal offense relating to exposing minors to harmful materials. The cited statute defines the offense and provides that a violation constitutes a misdemeanor. It is silent as to arrest and seizure. These events are the result of warrants issued upon probable cause when an alleged violation has occurred, just as in any case in which the violation of a criminal statute is involved. 2 Pursuant to valid warrants, the materials directly involved in the perpetration of the offense were taken and held as material evidence. When this occurs, nothing prevents the operator of a theater from showing another print of the film since the seizure is related directly to the specific offense giving rise to the warrant.

Section (3) of the statute provides for separate injunctive proceedings and immediate hearings, but no injunctive action is raised in this appeal and, therefore, we make no ruling upon the injunction provisions. All that is raised is a conviction under Section (2) for the offense of showing movies to a minor which satisfy the tests given in Section (1). Both Sections (1) and (2) are modeled upon Section 484--h New York Penal Law, McKinney's Consol.Laws, c. 40, discussed by the United States Supreme Court in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). That Court found these sections to be constitutionally sound, and so do we. 3 We further find that neither the State nor the Federal Constitutions require a prior judicially supervised hearing for determination of probable cause prior to issuance of arrest and search warrants obtained on account of an alleged violation of Fla.Stat. § 847.013(2)(a), F.S.A. See Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288 (S.D. New York 1969), aff'd per curiam, New York Feed Co. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970); United States v. Fragus, 422 F.2d 1244 (5th Cir. 1970), supplemental decision, 428 F.2d 1211 (5th Cir. 1970). 4

Appellant's second point relating to the alleged unconstitutionality of Fla.Stat. § 847.013, F.S.A. is that: 'THE CITED STATUTE FAILS TO PROVIDE FOR PROMPT APPELLATE CONSIDERATION AND FINAL DETERMINATION OF WHAT IS 'HARMFUL TO MINORS. " The thrust of this argument is that in obscenity-related cases, the material remains unobtainable for the public at large until termination of the appeal process; therefore, appellate review must be prompt lest a constitutionally protected freedom be unduly restricted by a slow judicial process. For precedential support, appellant cites Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and Meyer v. Austin, 319 F.Supp. 457 (M.D.Fla.1970).

Our first response to this assertion is to note again that upon the facts as given by appellant in this case and agreed upon by the State, nothing would have prevented appellant from securing and showing another print of the film. Therefore, the asserted rationale for the necessity of a unique requirement of 'prompt appellate consideration and final determination' is without merit in appellant's circumstance. Further, we continue to maintain that there is a vital and valid distinction between 'prior restraint' statutes involving administrative censorial schemes or broad injunctive prohibitions aimed at preventing circulation, and criminal prosecutions involving acts committed in violation of a criminal statute. Note that Freedman was involved with restraint proceedings initiated outside of the judicial system; in this situation, a prompt judicial review is a constitutional necessity. But where a criminal prosecution is initiated in a court of law, the deficiencies of a non-judicial forum dissipate, and appellate review follows the ordinary course of litigation. This is suggested by the case of Interstate Circuit Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968), wherein the United States Supreme Court, citing its prior decision in Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968), held:

'Appellants also assert that the city ordinance violates the teachings of Freedman v. Maryland, supra, because it does not secure prompt state appellate review. The assurance of a 'prompt final judicial decision' (380 U.S., at 59, 85 S.Ct. 734) is made here, we think, by the guaranty of a speedy determination in the trial court.' 390 U.S., at 690, Note 22, 88 S.Ct., at 1306.

This question is treated in Meyer v. Austin, Supra, 319 F.Supp. at pages 467--468, but we do not find the majority opinion persuasive. Again, our thinking is reflected in the dissent of the Honorable George C. Young, District Judge, appearing at pages 474--476. The Federal Constitution does not require that a specific provision...

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