Roaden v. Com.

• Decision Date: 25 June 1971
• Citation: 473 S.W.2d 814
• Parties: Harry ROADEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 814

473 S.W.2d 814

Harry ROADEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 25, 1971.

As Modified on Denial of Rehearing Dec. 17, 1971.

M. D. Harris, Phillip K. Wicker, Harris & Wicker, Somerset, for appellant.

John B. Breckinridge, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, for appellee.

DAVIS, Commissioner.

Harry Roaden, manager of Highway-27 Drive-In Theatre, was convicted of exhibiting obscene material in contravention of KRS 436.101(2). His penalty was fixed by the jury at a fine of $1,000 and confinement in jail for six months. The obscene material was a motion picture entitled 'Cindy and Donna.' It was conceded by Roaden's counsel in closing argument to the jury that the film is obscene. No issue is presented on appeal as to the obscenity of the material.

The assignments of error are that (1) the film was illegally seized; hence, evidence of its content should have been suppressed; (2) the court erred in permitting a deputy sheriff to have partial custody of the jury when the film was viewed, since the deputy was an interested witness for the prosecution; (3) the trial judge improperly questioned a witness; and (4) the prosecution should have been dismissed, or the judgment should be set aside because of failure of allegation or proof of scienter.

The sheriff of Pulaski County bought a ticket to the theatre and viewed the public showing of 'Cindy and Donna.' On the premise that the material was obscene, the sheriff proceeded to the projection booth and arrested Roaden, the manager of the theatre. He seized the reels of film incident to the arrest. The appellant contends that the seizure of the film and its subsequent use as evidence violated his constitutional immunity from illegal search and seizure. The appellant's theory is that a prior adversary hearing on the issue of obscenity of the material was required before the film could be seized. In support of that view the appellant relies on such decisions as Marcus v. Search Warrants of Property at 104 East Tenth St., Kansas City, Mo., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, and A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809. Those decisions relate to seizure of allegedly obscene material for destruction or suppression, not to seizures incident to an arrest for possessing, selling, or exhibiting a specific item. This court dealt with a related question in Smith v. Commonwealth, Ky., 465 S.W.2d 918, and held that a prior adversary hearing respecting obscenity was not required where the allegedly obscene material was purchased in the usual course of business.

The specific question was treated by a three-judge federal court in Hosey v. City of Jackson, Mississippi (S.D. Miss.), 309 F.Supp. 527 (1970). ¹ There police officers had viewed the film 'Candy' at a public showing, after which they arrested the manager and projectionist of the movie house and seized the film incident to the arrest. In rejecting the same argument which appellant presents, the court said, in part:

'This court is of the opinion that the seizure of an allegedly obscene film as an incident to lawful arrests for a crime committed in the presence of the arresting officers, i.e., the public showing of such film, does not exceed constitutional bounds in the absence of a prior judicial hearing on the question of its obscenity.' Id. 309 F.Supp. at page 533.

The court elaborated its reasons, noting that the arrest must be legal, the arresting officer must view the film in its entirety and apply the legal guidelines for measuring obscenity, and may seize only the print of the film viewed. In Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (decided February 23, 1971), the Supreme Court reversed a decision of a three-judge federal court which had held illegal the seizure of material as obscene incident to an arrest, without a prior adversary hearing as to its obscenity. The decision was premised upon the court's policy of noninterference with state criminal proceedings prior to adjudication by the state courts. This court is persuaded that the rule followed by the court in Hosey v. City of Jackson, Mississippi, supra, is the appropriate law. Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313, upon which appellant relies, is not dispositive here. In Lee Art the film had been seized pursuant to a search warrant, not incident to an arrest. The basis for the holding in Lee Art was that there was no valid ground for issuing the search warrant; hence, the ensuing search and seizure were illegal. The reasoning of that decision is not applicable here.

Appellant next complains of the trial judge's ruling in permitting Deputy Sheriff Strunk to be placed in partial charge of the jury as it proceeded to and from a theatre to view the film. The court placed State Trooper King in joint charge of the jury. Deputy Sheriff Strunk had been directed by the sheriff to 'keep an eye' on the theatre managed by appellant and had viewed part of the film and testified in the case. In these circumstances it would have been more appropriate if the trial judge had sustained appellant's objection to allowing Deputy Strunk to accompany the jury. However, in light of the fact that Trooper King was also deputed for the task, when considered with the fact that there was no intimation of any impropriety committed by Deputy Strunk, the court considers the irregularity as harmless. In light of the importance of maintaining the entire judicial process above suspicion, care should be taken to preclude such possible errors in trials. Cf. Dalby v. Cook, Ky., 434 S.W.2d 35, and Shackelford v. Commonwealth, 185 Ky. 51, 214 S.W. 788. The incident complained...