Flynt v. State

• Decision Date: 04 March 1980
• Docket Number: No. 58746,58746
• Citation: 153 Ga.App. 232,264 S.E.2d 669
• Parties: , 5 Media L. Rep. 2418 FLYNT v. The STATE.
• Court: Georgia Court of Appeals

Page 669

264 S.E.2d 669

153 Ga.App. 232, 5 Media L. Rep. 2418

FLYNT v. The STATE.

No. 58746.

Court of Appeals of Georgia.

Argued Oct. 3, 1979.

Decided Jan. 15, 1980.

Rehearing Denied Jan. 30, 1980.

Certiorari Denied March 4, 1980.

Herald P. Fahringer, Paul J. Cambria, Barbara D. Eberl, Buffalo, N. Y., Robert G. Fierer, Ronald F. Johnson, Atlanta, for appellant.

Hinson McAuliffe, Sol., Leonard W. Rhodes, George M. Weaver, Asst. Sols., for appellee.

CARLEY, Judge.

Appellant appeals from his conviction on eleven counts of distributing obscene materials, eight issues of Hustler magazine and three issues of a magazine entitled Chic.

1. Code Ann. § 26-2101 prohibits the knowing distribution of obscene materials. Material is obscene if: (1) to the average person, applying contemporary community standards, taken as a whole, it predominantly appeals to the prurient interest a shameful or morbid interest in nudity, sex or excretion; (2) taken as a whole, it lacks serious literary, artistic, political or scientific value; and (3) it depicts or describes in a patently offensive way, specifically defined sexual conduct. Code Ann. § 26-2101(b). In the instant case, the state introduced the eleven magazines into evidence and produced several expert witnesses in rebuttal on the obscenity question. Appellant enumerates as error the exclusion of certain evidence which, he contends, had relevancy to the "contemporary community standards" of Fulton County and whether the eleven magazines he was charged with distributing were or were not violative of those standards.

I. Public Opinion Survey

The trial judge excluded evidence of the results of a public opinion survey. The results of properly conducted public surveys have been admitted into evidence in other jurisdictions. See, e. g., Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.Supp. 670 (S.D.N.Y.1963). Assuming without deciding that the results of such surveys are, as a general proposition, admissible into evidence in Georgia as against a hearsay or other objection, it is clear that to be admissible into evidence in the specific case in which their introduction is sought, the survey results "must relate to the questions being tried by the jury and bear upon them either directly or indirectly." Code Ann. § 38-201. The survey questions merely inquired as to general opinions concerning the depiction of "nudity and sex," defined as "exposure of the genitals and sexual activity," and whether adults should have the opportunity to obtain such materials. The results of this survey were not relevant to the issue in the instant case whether the eleven magazines were obscene within the definition of Georgia law. The depiction of "nudity and sex" is not per se obscene. See Jenkins v. Georgia, 418 U.S. 153, 161, 94 S.Ct. 2750, 2755, 41 L.Ed.2d 642 (1974). It is obscene only if the depiction appeals to a shameful or morbid interest in nudity and sex and coalesces with the other elements of Code Ann. § 26-2101(b). Whether or not 76 of a 100 persons would say that the change in "standards" over recent years in the depiction of nudity and sexual activities is "more acceptable" does not show that those same persons would find that the eleven magazines in question depicted sex and nudity in an "acceptable" manner. There was no attempt in the survey itself to determine whether the respondents were of the opinion that the contents of the eleven magazines would or would not exceed the limits of permissible candor in the depiction of "nudity and sex." One may be of the opinion that adults have the right to obtain and view materials depicting "nudity and sex" although they would themselves regard the material as exceeding the bounds of "contemporary community standards" and as patently offensive. The survey asked no more than whether the respondents objected to the dissemination of materials depicting nudity and sex to willing adults, not whether they regarded material such as that depicted in appellant's magazines as obscene in themselves. The survey and expert testimony concerning it were properly excluded. Commonwealth v. Trainor, 374 N.E.2d 1216 (Mass.1978); Commonwealth v. Mascolo, 386 N.E.2d 1311 (Mass.App.1979).

II. Jury View

The trial court denied appellant's request that the jury be transported around the city of Atlanta in order to view various locations where sexually explicit materials were available. A jury view is a matter within the trial court's discretion. Sutton v. State, 237 Ga. 418, 228 S.E.2d 815 (1976). While the question of a jury view in the context of an obscenity trial apparently has not arisen in this state, other jurisdictions have held that a view such as that proposed by appellant is irrelevant in assisting the jury in reaching an understanding of the contemporary standards held by the average person in the community. See, e. g., Commonwealth v. Mascolo, 375 N.E.2d 17, 26 (Mass.App.1978), cert. denied 439 U.S. 899, 99 S.Ct. 265, 58 L.Ed.2d 247. The fact that sexually explicit material may be available in certain areas of the City of Atlanta is no indication that the average person, applying contemporary community standards, would not consider the eleven magazines to be obscene. State v. J-R Distributors, Inc., 82 Wash.2d 584, 512 P.2d 1049, 1083 (1973), cert. denied 418 U.S. 949, 94 S.Ct. 3217, 41 L.Ed.2d 1166. The request for a jury view was not erroneously refused.

III. Comparable Evidence

We now deal with the exclusion of what is termed "comparative" evidence evidence with which appellant would have the jury compare his magazines in determining their obscenity or nonobscenity. "There has been a considerable amount of confusion in the courts as to the admissibility and function of comparison evidence in obscenity cases. Some jurisdictions have held it reversible error to reject such evidence, while others exclude it rather summarily." United States v. Womack, 166 U.S.App.D.C. 35, 41, 509 F.2d 368, 374 (D.C.Cir.1974), cert. denied 422 U.S. 1022, 95 S.Ct. 2644, 45 L.Ed.2d 681. Thus we perceive the threshold question to be whether "comparable" evidence is admissible in this state in an obscenity case.

"(T)he Fourteenth Amendment does not permit a conviction . . . unless the work complained of is found substantially to exceed the limits of candor set by contemporary community standards. The community cannot, where liberty of speech and press are at issue, condemn that which it generally tolerates. This being so, it follows that due process 'using that term in its primary sense of an opportunity to be heard and to defend (a) . . . substantive right,' (Cit.) requires a State to allow a litigant in some manner to introduce proof on this score. While a State is not debarred from regarding the trier of fact as the embodiment of community standards, competent to judge a challenged work against those standards, it is not privileged to rebuff all efforts to enlighten or persuade the trier." Smith v. California, 361 U.S. 147, 171, 80 S.Ct. 215, 228, 4 L.Ed.2d 205 (1959)(Opinion of Justice Harlan). The landmark case standing for the proposition that the defendant in an obscenity trial may introduce in his defense comparable materials to those he is charged with distributing is Womack v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204 (D.C.Cir.1961). "The predicate for a conclusion that a disputed piece of (material) is acceptable under contemporary community standards, as shown by proffered other matter already in unquestioned circulation, must be that the two types of matter are similar. And as another part of his foundation he must show a reasonable degree of community acceptance of works like his own." Womack v. United States, 111 U.S.App.D.C. at 10, 294 F.2d at 206, supra.

We find the state's argument that the issues of the admissibility of comparable evidence in general and the Womack test in specific have heretofore been considered and rejected in Georgia to be unpersuasive. Montross v. State, 72 Ga. 261 (1884), and Gore v. State, 79 Ga.App. 696, 54 S.E.2d 669 (1949), relied upon by the state, were decided prior to the decisions of the United States Supreme Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). It was initially the Roth decision and, subsequently, the Miller decision which established "contemporary community standards" as an element in the determination of obscenity. And it is those standards which the defendant in an obscenity case seeks to establish by the introduction of comparable evidence. Womack v. United States, 294 F.Supp. 204, supra. The rationale behind the admission of "comparative" evidence is to allow the defendant in an obscenity case the opportunity to attempt to persuade the trier of fact that the challenged material does not exceed contemporary community standards, as represented by the comparable material and against which the challenged material is judged. The comparative material is tangible evidence of contemporary community standards. United States v. Womack, 166 U.S.App.D.C. 35, 509 F.2d 368, supra and Dumas v. State, 131 Ga.App. 79, 205 S.E.2d 119 (1974) held only that magazines and publications were not erroneously excluded from evidence in the trial of one charged with distributing obscene medallions. We do not view Dumas as a rejection of the right of a defendant in an obscenity case to introduce comparable evidence, as that evidence is defined in Womack. Rather, it is clear that the excluded evidence in Dumas magazines would not have satisfied the Womack requirement that the proffered evidence must be "similar" to the alleged obscene material medallions.

Nor are we persuaded by the state's arguments that we should, in the instant case, reject the right of a defendant in an obscenity trial to introduce evidence which meets the Womack requirements. Such evidence would not be irrelevant. It would show ...