Marques v. State

• Decision Date: 04 January 1973
• Docket Number: No. 80,80
• Citation: 298 A.2d 408,267 Md. 542
• Parties: Richard MARQUES t/a Glen News Bookstore v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 542

267 Md. 542

298 A.2d 408

Richard MARQUES t/a Glen News Bookstore v. STATE of Maryland.

No. 80.

Court of Appeals of Maryland.

Jan. 4, 1973.

Bernard P. Jeweler, Baltimore (Gordon H. Levy and Edelman, Levy & Rubenstein, Baltimore, on the brief), for appellant.

John P. Stafford, Jr., Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Edward F. Borgerding, Asst. Atty. Gen., Baltimore, Raymond G. Thieme, Jr., State's Atty., and David R. Cutler, Asst. State's Atty., for Anne Arundel County, Annapolis, on the brief), for appellee.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

McWILLIAMS, Judge.

In October 1971, as an adjunct to his Glen Burnie Bookstore, the appellant (Marques) was operating, for the delectation of the local yeomanry, a battery of 'peep-shows' all conceded to be hard-core pornography and none bearing the seal of the Maryland State Board of Censors. Since the law frowns upon this sort of thing, Code (1971 Repl. Vol.), Art. 27, §§ 417, 418 and 418A; Art. 66A (1970 Repl. Vol.), the police looked into Marques's activities and, in January 1972, the State's Attorney mounted an attack against him which was successful below. Whence comes this appeal.

The State's initial sortie took place on 18 January 1972. It consisted on the issuance of an arrest warrant, a search warrant, an order requiring Marques to show cause within three days why the search warrant should not be executed, and an order temporarily restraining him from 'disposing of, relinquishing possession of, or in any manner cutting, altering, splicing, destroying or mutilating . . . (11 motion picture films) for a period of 4 days or until the conclusion of the hearing (set for 21 January).' The warrants and the orders were served upon Marques on the same day, 18 January.

On 24 January the State moved for an extension of the temporary restraining order. The ensuing order of court, passed that same day, recites that the court had been 'advised as follows.' There follow brief descriptions of ten of the eleven 'peep-show' films and descriptions of two eight millimeter films sold by Marques to a policeman. Excerpts from the court's order follow:

'WHEREAS, immediately prior to a scheduled hearing before the undersigned . . . (set for 2:00 p. m., 21 January) counsel for . . . (Marques) appeared with the State's Attorney . . . and requested clarification of the nature of the proposed hearing as well as additional time in which to prepare his client's case, and

'WHEREAS, it was agreeable with all parties present that such postponement be afforded and that the hearing when held, would be designed as an adversary hearing before a judicial officer of this court for the purpose of determining whether or not the aforementioned motion picture films were actually obscene and subject to seizure by the peace officers of this county, and whether or not . . . (Marques) by virtue of . . . (his) possession and display of said allegedly obscene film . . . (is) in fact, subject to arrest for possible violation of Article 27 section 418 . . ..

'Now, therefore, it is this 24th day of January, 1972, by the Circuit Court for Anne Arundel County, in Equity, ORDERED that . . . (Marques and his employees) be, and the(y) . . . are hereby restrained from disposing of, relinquishing possession of, or in any manner cutting, altering, splicing, destroying or mutilating the aforementioned motion picture film as described in subparagraphs 2a-k (actually 2a-j) for a period to extend to and inclusive of February 3, 1972; unless counsel for . . . (Marques has) prior thereto filed joinder of issue and (has) request(ed) a hearing within one day thereof and unless otherwise temporarily extended.

'This cause, unless prior thereto . . . (Marques) move(s) for hearing upon one day after joinder of issue, shall stand for hearing . . . at 10 A.M. on February 3, 1972, at which time . . . (Marques) is ordered to produce in court the films more particularly described in subparagraphs a through k (actually a through j) inclusive aforementioned.

'It is hereby further ORDERED that the search and seizure warrant . . . (issued 18 January) . . . be, and the same is hereby quashed.

'It is further ORDERED that the arrest warrant . . . (issued 18 January) be, and the same is hereby quashed and the bond remitted to . . . (Marques).

'It is further ORDERED that the show cause order . . . (issued 18 January) and directed to . . . (Marques) is hereby stricken.

'It is further ORDERED that pending the hearing on February 3rd, 1972 . . . (the State) shall be temporarily restrained from committing any threats of arrest of . . . (Marques) relating to the possession, sale, or distribution of said material hereinabove listed.

'And it is further ORDERED that . . . (the police) are hereby temporarily restrained from harassing, threatening to arrest or otherwise persecuting (Marques) in any manner . . . (in his) operations pending the outcome of the hearing hereon . . ..'

It should be observed that all of the motions, petitions and orders so far mentioned bear the identification 'No. 20,707 Equity.' (Emphasis added.)

On 25 January the assistant State's Attorney filed on behalf of the State, a petition in No. 20,707 Equity praying the issuance of 'an injunction pursuant to Article 27, Section 418A.' Additionally, after stating 'the grounds for said petition,' the State, in its prayer for relief, asked the court

(a) to enjoin the 'further display, distribution or exhibition' of the films or copies thereof,

(b) to order the surrender of the films to a peace officer,

(c) to order the films to be held by the State as evidence of violations of § 418 (d) to order the destruction of the films, pursuant to § 418A after their use as evidence of violations of § 418,

(e) to grant such other and further relief, etc.

Upon this petition the court, on the same day, passed a show cause order. At 9:43 a. m., on 3 February, Marques moved to dismiss to extension of the temporary restraining order passed 25 January. He recited the allegation in the motion for the extension of the temporary restraining order 'that there is pending an application for a Search and Seizure Warrant based on sworn affidavits of officers of the Anne Arundel Police Department and (that) there is probable cause to believe that . . . (Marques is) violating' § 418. He went on to recite that the motion and the 'order itself ostensibly were filed in . . . Equity under Section 418A . . . (which) being civil in nature, (he) therefore, is not subject to criminal prosecution . . .. Wherefore (he says) the (pending) Application for Search and Seizure Warrant and the affidavits thereon (should) be dismissed so that . . . (he) can be guaranteed a prior adversary hearing to determine whether the alleged material is legally obscene by a judicial determination.' The case came on for a hearing at 10:00 a. m., without any action having been taken on Marques's motion. At the conclusion of the hearing on 4 February the court found the films to be 'hard core pornography and obscene as a matter of law.' The court 'reiterate(d) that these proceedings are strictly civil in nature' and he cautioned against construing anything in his oral (and later written) opinion as reflecting his impression in respect of the guilt or innocence of Marques, his 'finding having dealt solely with . . . (the films).' (Emphasis added.)

By its order, signed and filed later the same day (4 February), the court adjudged the films to be 'obscene within the meaning of' §§ 418 and 418A and restrained their 'further exhibition, distribution or display.' The concluding paragraphs of the order are as follows 'It is further ORDERED that . . . (Marques) give over to the . . . (police) each copy of such films . . . for the use of the State . . . as evidence of violation of . . . § 418 . . . to be held by the State until the usefulness of said films as evidence be ended.

'It is further ORDERED that the State destroy said films in accordance with . . . § 418A . . . after the usefulness of said films as evidence be ended.'

On 10 February (six days after the filing of the order of 4 February) Marques filed his answer to the petition for injunction filed 25 January. He denied the allegation in the paragraph relating to the sale of two films to the police and he denied that all of the films constituted violations of § 418. He admitted that the hearing was 'presumed to be an adversary hearing for the purpose of determining whether or not the . . . films are in fact obscene' but he stoutly declared that he could not 'be subjected to arrest for possible violation of . . . § 418 . . . because § 418A . . . is several in nature and therefore does not subject . . . (him) to the criminal prosecution.'

Ten minutes later (on 10 February) Marques filed his appeal from the 'orders and injunctions entered . . . on January 18 . . .; entered, extended and re-instituted on January 21 . . . and on February 4 . . ..'

Marques harangues us with the sort of cant we have come to expect in obscenity cases. While vaunting the obscenity of his films he drapes himself in a togarun up from patches of the First Amendment ¹, the Fifth Amendment, the Fourteenth Amendment, a hankering for a jury trial and the dolours he says are born of the denial thereof, impermissible prior restraint, and the denigration of § 418A. We think these complaints were laid to rest in Village Books, Inc. v. State's Attorney for Prince George's County, 263 Md. 76, 282 A.2d 126 (1971). However, we see some merit in his contention that although he may be vulnerable to attack under § 418 or § 418A, the State may not proceed against him simultaneously under both. For the most part we shall confine our discussion to that aspect of the case.

The trial judge thought, because in Village Books we declared § 418A to be a virtual carbon copy of the New York statute, that the comment of Mr. Justice Frankfurter,...