People v. Tabron
| Decision Date | 05 January 1976 |
| Docket Number | No. 26391,26391 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Samuel TABRON, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Bernard D. Morley, Denver, for defendant-appellant.
The appellant was convicted of a violation of the Colorado Obscenity Statute. 1971 Perm.Supp., C.R.S.1963, 40--7--102(1)(b); See also 1971 Perm.Supp., C.R.S.1963, 40--7--101(1). 1 The issues before us parallel those which were resolved in People v. Tabron, Colo., 544 P.2d 372 (announced January 5, 1976); People v. Hildebrandt, Colo., 544 P.2d 384 (announced January 5, 1976); and Menefee v. City and County of Denver, Colo., 544 P.2d 382 (announced January 5, 1976). Our holding in People v. Tabron, supra, requires that we reverse the appellant's conviction and remand with directions to dismiss the charges in this case.
The appellant was convicted of promoting obscenity, in violation of 1971 Perm.Supp., C.R.S.1963, 40--7--102(1)(b), 2 which provides:
'(1) A person commits promoting obscenity if he knowingly:
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'(b) As owner, producer, director, manager, or performer, promotes any obscene performance or any portion of such a performance which contributes to the obscenity of the performance as a whole.'
In our view, the evidence was sufficient to establish that the appellant was the manager of the Las Vegas Cinema Theater at the time the film 'Behind the Green Door' was shown. However, the definition of the word 'obscene' contained in 1971 Perm.Supp., C.R.S.1963, 40--7--101(1) and (2), 3 was condemned by us in People v. Tabron, supra, as being vague and overbroad when measured by constitutional standards.
Prior to trial, defense counsel filed a motion to require the trial judge to determine the community standard which would be used to judge the obscenity issue, but the trial judge refused to make such a determination.
Fundamental fairness requires that the defendant be advised by the court as to the community standard which is to provide the criteria for determining the issue of guilt or innocence. In the course of the trial, evidence relating to the obscenity issue was limited to El Paso County without prior notice to the defendant. As a result, the community standard was a matter of speculation until the time of trial.
Admittedly, a national standard would be an exercise in futility. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The elusive contemporary community standards referred to in the Miller case were left for definition by the states in Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). 1971 Perm.Supp., C.R.S.1963, 40--7--101(2) 4 directs that obscene material is to be measured 'by reference to the average adult in the community as a whole . . ..'
The legislature has provided us with a definition of community standards that lacks clarity. The appellant contends, and rightly so, that anything less than a state-wide standard is unworkable when state obscenity statutes are involved. It is fundamentally unfair that any person would be called upon to undergo a trial that would entail criminal penalties for the violation of a state obscenity statute without knowing what the standard is that will determine his guilt or innocence. The random decision of a judge or jury cannot be the standard, and the state statute should not be construed in a different manner in Denver, Littleton, Grand Junction, Colorado Springs, and Aspen.
In attempting to comply with the requirements of the Miller decision, other states have determined that a state-wide community standard is dictated by the constitution. See Court v. State, 63 Wis.2d 570, 217 N.W.2d 676 (1974); See also Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); Miller v. California, supra; People v. Heller, 33 N.Y.2d 314, 352 N.Y.S.2d 601, 307 N.E.2d 805 (1973); State v. J-R Distributors, 82 Wash.2d 584, 512 P.2d 1049 (1973). To impose less than a state-wide standard in the interpretation...
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People v. Ford
...190 Colo. 167, 544 P.2d 384 (1976); Menefee v. City and County of Denver, 190 Colo. 163, 544 P.2d 382 (1976); People v. Tabron, 190 Colo. 161, 544 P.2d 380 (1976) (Tabron II ); People v. Tabron, 190 Colo. 149, 544 P.2d 372 (1976) (Tabron I The majority's analysis of the Colorado obscenity s......
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People v. Tabron
...not one, but possibly thousands of undefined and illusive local communities. For the reasons stated in our companion case of People v. Tabron, Colo., 544 P.2d 380 (announced January 5, 1976), we feel that nothing less than a state-wide standard is feasible in the interpretation of a state T......
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...the issue a step further and held that use of anything less than a state-wide standard would be unconstitutional. In People v. Tabron, 190 Colo. 161, 544 P.2d 380 (1976), the court cited the U.S. Constitution, Amendment I, and stated that imposition of "less than a state-wide standard in th......