Pierce v. State

• Decision Date: 09 May 1974
• Citation: 296 So.2d 218,292 Ala. 473
• Parties: In re J. L. PIERCE v. The STATE of Alabama. Ex parte J. L. Pierce. SC 483.
• Court: Alabama Supreme Court

Page 218

296 So.2d 218

292 Ala. 473

In re J. L. PIERCE v. The STATE of Alabama.

Ex parte J. L. Pierce.

SC 483.

Supreme Court of Alabama.

May 9, 1974.

Rehearing Denied June 6, 1974.

J. Paul Lowery, Montgomery, Robert Eugene Smith, D. Freeman Hutton, Atlanta, Ga., for petitioner

William J. Baxley, Atty. Gen. and 'My First Trick,' 'The Beautiful Yogi Gen., and Francis A. Poggi, Jr., Sp. Asst. Atty. Gen., for the state.

HEFLIN, Chief Justice.

The major holdings of this case are as follows:

1. The tests set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) are engrafted by judicial construction to the 1961 Alabama obscenity statute.

2. With the Miller engraftments the 1961 Alabama obscenity statute is constitutional as applied in the context of the instant case.

3. Contemporary community standards referred to in Miller are statewide standards in Alabama.

This case is before this court on a Writ of Certiorari to the Court of Criminal Appeals. Petitioner Pierce was charged with violating Title 14, Section 374(4), Alabama Code of 1940, as amended (Recompiled 1958) (Supp.1971), in three separate indictments totaling 11 counts, all alleging that Pierce did 'sell, exhibit, or commercially distribute non-mailable and obscene printed or written matter.' The three cases were consolidated, and after a trial to a jury, Pierce was found guilty on all counts. Pierce appealed to the Court of Criminal Appeals which affirmed his conviction and denied rehearing, both without opinion. This court issued a Writ of Certiorari to the Court of Criminal Appeals to determine whether the statute under which Pierce was prosecuted meets the constitutional requirements of the First, Fifth and Fourteenth Amendments as enunciated in 1973 cases decided by the Supreme Court of the United States, and, to determine the precise effect of these recent developments on cases not finally decided at the time the decisions were handed down.

On three separate occasions, members of the Montgomery Police Department entered Jimmy's News Stand in Montgomery, Alabama, and purchased several items from petitioner Pierce at random. Officer Brown purchased 'The Pussy Kissers,' 'My First Trick,' cThe Beautiful Yogi and the Stud,' and 'Italia'; Detective Wright purchased the 'Filthy Funny Book' on one occasion and 'The Young Suckers,' 'The Hardup Head Mistress,' The defendant attempted to put into evidence a number of exhibits tending to show what community standards were extant in Montgomery, Alabama, but an objection to the introduction of the exhibits was sustained. Defendant did call a witness who was allowed to testify as to community standards. The trial court charged that in determining whether the matter in evidence was obscene the jury was to consider the community standards of Montgomery, Alabama.

'Little Nudist Quarterly' and a newspaper-type publication identified as 'Cruelty and Sex' on another occasion. All material purchased by both officers was in an area separated from the rest of the bookstore by a wire cage upon which a notice was posted stating, 'Persons under 21 not admitted.'

In view of the great volume of literature generated both by courts and legal commentators dealing with the 'intractable obscenity problem,' it hardly seems necessary for this court to add to the deluge by an extended discussion of the development of the current constitutional guidelines for treating such problems. The most authoritative analysis of what the United States Supreme Court has attempted to do over the years is found in that court's latest expressions (on June 21, 1973) on the subject and need not be repeated here. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); United States v. 12 200--Ft. Reels of Super 8 mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973).

The task before this court, therefore, is not to dwell on what has gone before, but to examine the issues presented by the case at hand, and in so doing to attempt to fashion some guidance for courts, prosecutors, defendants, juries and prospective defendants in this state which will conform with these most recently promulgated constitutional guidelines.

Title 14, Section 374(4), Alabama Code of 1940, as amended (Recompiled 1958) (Supp.1971), under which the petitioner was convicted, reads, in part, as follows:

'Every person who . . . sells, exhibits or commercially distributes, or gives away or offers to give away . . . any obscene printed or written matter or material . . . shall be guilty of a misdemeanor . . ..'

For the purpose of Section 374(4) the word 'obscene' is defined by Section 374(3):

"Obscene' means lewd, lascivious, filthy and pornographic and that to the average person, applying contemporary community standards, its dominant theme taken as a whole appeals to prurient interest.'

In a 1971 per curiam decision this court affirmed a finding that the matter before the lower court was obscene in an equitable matter under Section 374(5). Section 347(5) is also dependent upon the Section 374(3) definition of obscenity. The court affirmed by finding that the definition embodied the then current constitutional tests:

'From viewing (the exhibits) we are persuaded that in them we find a coalescence of the following elements: (a) the dominate theme of the material taken as a whole appeals to the prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.' McKinney v. State, 287 Ala. 648, 254 So.2d 714 (1971), cert. denied, 405 U.S. 1075, 92 S.Ct. 1499, 31 L.Ed.2d 809 (1972). (Since there are a number of cases involving McKinney before this court, this case will be referred to as McKinney I.)

Thus, prior to June 21, 1973, in order to affirm a conviction for violating Section 374(4) the court would have to be satisfied that the above tests had been met. However, in Miller and its companion cases decided by the U.S. Supreme Court in 1973, new constitutional tests were established which were designed to eliminate the confusion caused by the so-called Roth-Memoirs ¹ tests described in McKinney I.

In Miller, the court attempted to provide 'positive guidance' to other courts dealing with obscenity issues. The court recognized 'the inherent dangers of undertaking to regulate any form of expression.' Therefore, the court continued, '(s)tate statutes designed to regulate obscene materials must be carefully limited.' The first limitation mentioned by the court was the scope of the statute: '(W)e now confine the permissible scope of such regulation to works which depict or describe sexual conduct.' Furthermore, '(t)hat conduct must be specifically defined by the applicable state law, as written or (as) authoritatively construed.' Other guidelines are succinctly stated in the following language:

'The basic guidelines for the trier of facts must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.'

The court went on to hold that 'contemporary community standards' did not mean a national standard, and that a statute which referred to a state standard would be constitutionally permissible.

APPLICATION OF MILLER

The first issue this court must deal with is whether the statute contains the necessary specificity as required by Miller. The U.S. Supreme Court in Miller invites judicial construction as a method of supplying the required specificity if such is absent from the statute. As already mentioned, this court in McKinney I limited the reach of the statute by construing it as encompassing the then current Roth-Memoirs tests. The construction in McKinney I supplied all the elements of Roth-Memoirs tests even though these elements were missing from the statute as drafted. Similarly, this court now specifically incorporates the Miller guidelines or tests heretofore set out into its construction of the word 'obscene' in Section 374(3). Thus the operation of the provisions of Section 374(4) applicable in this case is limited to matter which depicts or describes sexual conduct. The regulated matter is more specifically restricted to (a) 'Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,' or (b) 'Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.' Further, the state need only prove the work, taken as a whole, lacks serious literary, artistic, political or scientific value, rather than 'utterly' without such value as was formerly the test.

The argument is made that Miller should not be retrospectively applied and that to construe the statute and apply it to the defendant in the instant case would violate 'The front and back covers, however, were clearly visible through the cellophane covers and in one or more of these covers were the photographs of a female with her feet spread-eagled apart, exposing her genital organs.

ex post facto principles. This argument is without merit since the U.S. Supreme Court in a footnote to Miller states that 'existing state statute as construed Heretofore or hereafter, may be adequate.' (Emphasis added) McKinney I was decided prior to the defendant's arrest, indictment and conviction. McKinney I...