State ex rel. Collins v. Superior Court, In and For County of Maricopa

• Decision Date: 02 July 1986
• Docket Number: 6671-PR and 17962-SA,Nos. 18364-S,s. 18364-S
• Citation: 787 P.2d 1042,163 Ariz. 246
• Parties: STATE of Arizona, ex rel. Thomas E. COLLINS, Maricopa County Attorney, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Stephen Scott, Judge of Maricopa County Superior Court, Division 35 thereof, and Albright Investment Corporation, Merlyn Dean Albright, Hector Lara, and Steven Sutton, Respondents. STATE of Arizona, Appellee, v. Shih Ching LIN, Appellant. STATE of Arizona, ex rel. Thomas E. COLLINS, Maricopa County Attorney, Petitioner, v. The Honorable Rufus COULTER, Jr., Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent, John Mangan, Rose Mangan d/b/a Far East Adult Book Store; Ronald Eugene Vollmar, Sr., Carole Marie Vollmar, Ronald Eugene Vollmar, Jr.; and I.A.S., Inc., d/b/a International Adult Shop, Charles L. Clapp and Charles E. Stuart, Real Parties in Interest.
• Court: Arizona Supreme Court

Page 1042

787 P.2d 1042

163 Ariz. 246

STATE of Arizona, ex rel. Thomas E. COLLINS, Maricopa County Attorney, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Stephen Scott, Judge of Maricopa County Superior Court, Division 35 thereof, and Albright Investment Corporation, Merlyn Dean Albright, Hector Lara, and Steven Sutton, Respondents.

STATE of Arizona, Appellee, v. Shih Ching LIN, Appellant.

STATE of Arizona, ex rel. Thomas E. COLLINS, Maricopa County Attorney, Petitioner,

v.

The Honorable Rufus COULTER, Jr., Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent,

John Mangan, Rose Mangan d/b/a Far East Adult Book Store; Ronald Eugene Vollmar, Sr., Carole Marie Vollmar, Ronald Eugene Vollmar, Jr.; and I.A.S., Inc., d/b/a International Adult Shop, Charles L. Clapp and Charles E. Stuart, Real Parties in Interest.

Nos. 18364-SA, 6671-PR and 17962-SA.

Supreme Court of Arizona, In Banc.

July 2, 1986.

Reconsideration Denied Sept. 9, 1986.

Robert K. Corbin, Atty. Gen. by Jessica Gifford Funkhouser and Gerald R. Grant, Asst. Attys. Gen., Phoenix, for petitioners and appellee.

Richard J. Hertzberg, Phoenix, for respondents and appellant.

John Verkamp, Coconino Co. Atty., Flagstaff, Steven P. Suskin, La Paz Co. Atty., Parker, Roy A. Mendoza, Pinal Co. Atty., Florence, Charles R. Hastings, Yavapai Co. Atty., Prescott, B. Robert Dorfman, Phoenix City Prosecutor, Phoenix, Jack M. Williams, Graham Co. Atty., Safford, David S. Ellsworth, Yuma Co. Atty., Yuma, William J. Ekstrom, Jr., Mohave Co. Atty., Kingman, Joe Albo, Jr., Gila Co. Atty., Globe, Lowell D. Hamilton, Mesa City Prosecutor, Mesa, R. William Call, Tucson City Prosecutor, Tucson, Richard W. Donato, Yuma City Prosecutor, Yuma, Roberta N. Miller, Chandler City Prosecutor, Chandler, Alan K. Polley, Cochise Co. Atty., Bisbee, Jose L. Machado, Santa Cruz Co. Atty., Nogales, Vincent A. Iannone, Lake Havasu City Atty., Lake Havasu City, amici curiae of Arizona Prosecuting Attys.

HOLOHAN, Chief Justice.

We took jurisdiction of these three cases to decide an important issue involved in the prosecution of obscenity law violations. The same issue arises in all three cases, and we have for that reason consolidated the cases for the purpose of this opinion. In State ex rel. Collins v. Superior Court, No. 17962-SA, the State sought to prosecute Albright Investment Corporation for various obscenity law violations. On July 2, 1984, and prior to trial in the superior court, the State's motion for dismissal without prejudice was granted.

On July 12, 1984 the charges were refiled in Scottsdale Justice Court and a preliminary hearing was set on October 4, 1984. At the preliminary hearing, pursuant to stipulation, the State submitted its case based upon the transcripts of the first preliminary hearing in which no ancillary evidence of obscenity was presented to the court. The defense moved to dismiss based on the ruling in City of Phoenix v. Fine, 4 Ariz.App. 303, 420 P.2d 26 (1966). The magistrate granted the defense motion to dismiss. The State filed a timely notice of appeal to the superior court. A.R.S. § 13-4032; Litak v. Scott, 138 Ariz. 599, 676 P.2d 631 (1984).

The superior court judge refused to set aside the dismissal, and the State challenged that ruling by filing a petition for special action with this court. We accepted jurisdiction.

In State v. Shih Ching Lin, 163 Ariz. 315, 787 P.2d 1111 (App.1985), the defendant was charged with production, publication, sale and possession of obscene items. At trial the State presented no expert testimony concerning the contemporary state standards on obscenity. Upon conviction, defendant appealed. The Court of Appeals, Division Two, held the State must produce affirmative evidence on the state standard of obscenity and reversed with directions to enter a judgment of acquittal. (State v. Shih Ching Lin, 163 Ariz. 315, 787 P.2d 1111 (App.1985). We granted the State's petition for review.

In State ex rel. Collins v. Coulter (No. 18364-SA) three separate defendants all of whom were charged with violating the obscenity statutes filed a motion for new determination of probable cause because the State had not introduced any affirmative evidence on the elements of obscenity at their preliminary hearings. The superior court judge granted the motion and ordered the cases remanded to the justice court. The State filed a special action in this court seeking to have the ruling of the superior court set aside. We accepted review.

The common issue in these cases is whether the State is required to present expert testimony to establish that the material at issue is obscene.

As stated in State v. Navarrette, 115 Ariz. 574, 566 P.2d 1050 (App.1977), Arizona's obscenity statute, A.R.S. § 13-3501-3508, was "drawn with an eye toward Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)." Id. at 576, 566 P.2d at 1052. It reads in pertinent part:

An item is obscene within the meaning of this chapter when:

(a) The average person, applying contemporary state standards would find that the item, taken as a whole, appeals to the prurient interest; and

(b) The item depicts or describes, in a patently offensive way, sexual activity as that term is described herein; and

(c) The item taken as a whole, lacks serious literary, artistic, political or scientific value.

A.R.S. § 13-3501(2) (emphasis added).

The defendants contend that City of Phoenix v. Fine, 4 Ariz.App. 303, 420 P.2d 26 (1966), requires the State not only to offer into evidence the allegedly obscene material but also to present expert testimony on the elements that comprise the statewide standard of obscenity. They allege a trier of fact is unable to ascertain the state standard absent the introduction of affirmative evidence which establishes the state standard on obscenity.

Fine, supra, dealt with a situation in which a city sought injunctive relief against the sale of alleged obscene books and magazines, but the ruling is arguably applicable to criminal prosecution. In Fine, there was no testimony at trial concerning the quality of the four books and four magazines that had been seized and placed in evidence at trial, nor was there any testimony on the effect the material might have on the community. Relying on the then applicable federal standard enunciated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and our statute then in force, ¹ the Court of Appeals ruled that expert testimony was necessary to establish whether an item appeals to prurient interest and is lacking redeeming social value. In reaching its conclusions the court stated: "[W]e believe no evidence was presented at trial for any finding of fact to be made [by the trier of fact]." City of Phoenix v. Fine, 4 Ariz.App. at 309, 420 P.2d at 32. "The court may, as any trier of fact, ultimately accept or reject any of the evidence presented to it, but it must have the benefit of evidence." Id. at 307, 420 P.2d at 30.

Fine was decided in 1966 under the Roth standard. Obscenity law today is governed by the trilogy of cases all handed down on the same day in 1973: 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); and Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973). The main focus of the trilogy is that obscenity is an extreme expression which is beyond the protection of the First Amendment.

In Miller, supra, the Court explained what was necessary to establish what is obscene:

The basic guidelines for the trier of fact 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 [citations omitted]; (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.

Id. 413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431. In specifically rejecting the prior standard ² of "utterly without redeeming social value,"--which was the language of our statute prior to Miller ³--the United States Supreme Court refused to attempt to define obscenity with mathematical precision. The Court reasoned that the use of one rigid, intractable standard for what is "prurient" or "patently offensive" would usurp the adversary system, whereby members of the community as triers of fact are allowed to bring to the deliberations their experience as members of the community. Miller, supra, at 30, 93 S.Ct. at 2618, 37 L.Ed.2d at 434. Therefore, "the average person, applying contemporary community standards" is the yardstick for determining what is obscene, as there is "[n]othing in the First Amendment requir[ing] that a jury must consider hypothetical and unascertainable 'national standards.' " Id. at 31, 93 S.Ct. at 2619, 37 L.Ed.2d at 435. "It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people [of any one state] accept public depiction of conduct found tolerable in [another state]." Id. at 32, 97 S.Ct. at 2619, 37 L.Ed.2d at 435. (citations omitted). Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), emphasized that the material be adjudged, not by the impact on individuals on either end of the spectrum, but by the impact on the average person of the community. "[T]he [fact that] ... the jury evaluate[s] the materials with reference to [state-wide standards] serves [the protective purpose espoused in Mishkin ] and is constitutionally adequate." Miller, 413 U.S. at 33-34, 93 S.Ct. at 2620, 37 L.Ed.2d at 436.

The second in the trilogy, Paris Adult Theatre I, was an attempt by the State to enjoin the showing of...