State v. Colasuonno

• Citation: 432 A.2d 334
• Parties: STATE of Delaware v. Carl COLASUONNO, Robert L. Dailey, Sandra Halter, Sharon Miller and Charlotte E. Murphy, Defendants.
• Decision Date: 19 May 1981
• Court: Delaware Superior Court

Page 334

432 A.2d 334

STATE of Delaware v. Carl COLASUONNO, Robert L. Dailey, Sandra Halter, Sharon Miller and Charlotte E. Murphy, Defendants.

Superior Court of Delaware, New Castle County.

Submitted March 16, 1981.

Decided May 19, 1981.

Jeffrey S. Goddess, and Jerome M. Capone (argued), City of Wilmington Law Department, for the State of Delaware.

Bernard J. Gartland of Gartland & Dixon, Wilmington; and Saul J. Steinberg (argued), Voorhees, N.J., of counsel, for defendants.

TAYLOR, Judge.

This Opinion involves the combined motions of Carl Colasuonno, Robert Dailey, Sharon Miller, Sandra Halter and Charlotte Murphy (defendants) to dismiss the State's informations ¹ charging them with violations of 11 Del.C. § 1361.

Defendants Colasuonno, Miller, Halter and Murphy have been charged with violating 11 Del.C. § 1361(a)(2) in that they either presented or participated in an obscene performance in which live nude women engaged in masturbation or a simulation thereof. Defendant Dailey is charged with violating 11 Del.C. § 1361(a)(1) in that he knowingly provided the embodiment of obscenity by selling admission to an obscene performance of live naked women. The defendants move to dismiss the informations on the following bases: (1) 11 Del.C. § 1361(a) is unconstitutionally vague in that it fails to specifically apprise the defendants of what type of conduct is to be considered "obscene;" and (2) even if 11 Del.C. § 1361(a) may validly prohibit their conduct, the informations are defective in that they do not set forth the nature of the charges with sufficient clarity to allow the defendants to prepare their defense properly and be protected against later prosecution for the same offense. There is also a question as to whether defendant Dailey may be charged with a violation of 11 Del.C. § 1361(a)(1).

I

11 Del.C. § 1361 provides in pertinent part:

§ 1361. Obscenity; acts constituting; class D felony or Class A misdemeanor; subsequent violations.

(a) A person is guilty of obscenity when he knowingly:

(1) Sells, delivers or provides any obscene picture, writing, record or other representation or embodiment of the obscene;

(2) Presents or directs an obscene play, dance or performance or participates in that portion thereof which makes it obscene;

(3) Publishes, exhibits or otherwise makes available any obscene material;

(4) Possesses any obscene material for purposes of sale or other commercial dissemination; or

(5) Permits a person under the age of 12 to be on the premises where material harmful to minors, as defined by § 1365 of this title, is either sold or made available for commercial distribution and which material is readily accessible to or easily viewed by such minors. Any material covered by this paragraph shall not be considered readily accessible to or easily viewed by minors if it has been placed or otherwise located 5 feet or more above the floor of the subject premises or if the material is concealed so that no more than the top 3 inches is visible to the passerby.

11 Del.C. § 1364 provides:

§ 1364. Definition of obscene.

Material is obscene if:

(1) The average person applying contemporary community standards would find the material, taken as a whole, appeals to the prurient interests; and

(2) The material depicts or describes:

a. Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; or

b. Patently offensive representations or descriptions of masturbation, excretory functions, and/or lewd exhibitions of the genitals; and

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

Section 1361 is an adaptation of Model Penal Code § 251.4(2).

Section 1364 is an adaptation of the basic guidelines set forth by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). These guidelines were enunciated to allow State regulation of "obscene" materials and conduct, while giving fair notice to prospective defendants of the possible illegality of their conduct, without regulating that "speech" and conduct which is protected by the First Amendment of the United States Constitution as applied to the States through the Fourteenth Amendment.

In Miller, the Court set forth the limits of regulation as follows:

(6-8) 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, ... (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.

413 U.S. at 25, 93 S.Ct. at 2615

The Court noted that it did not seek to propose regulatory schemes. Rather, it sought merely to delineate the area of permissible regulation which did not contravene rights protected by the First Amendment.

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. 413 U.S. at 25, 93 S.Ct. at 2615.

Provisions proscribing obscenity in the format found in § 1361 first appeared in the Delaware Criminal Code which was enacted by 58 Del. Laws Ch. 497, § 1361, which became effective April 1, 1973. The pertinent definition section is § 1364 which by its heading purported to contain a definition of "obscene," but by its language referred only to obscene material. This definition incorporated the standards which had been enunciated by the United States Supreme Court decision which antedated Miller. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). The initial § 1364 was replaced by a new § 1364 which was enacted January 28, 1974 by 59 Del.Laws Ch. 236. The new § 1364 utilized the guidelines of Miller. Raymond Heartless, Inc. v. State, Del.Supr., 401 A.2d 921 (1979). Again the language of the section referred only to obscene material. Its heading, as in the case of its predecessor, indicated that it was a definition of "obscene" and the caption of the enacting bill read "An Act To Amend 58 Laws of Delaware, Chapter 497, Relating To The Definition of Obscenity".

Defendants argue that although 11 Del.C. § 1364 purports to define the term "obscene" as used in 11 Del.C. § 1361(a) and other sections, 11 Del.C. § 1364 by its plain language is limited to defining obscene material. There is no other definition section which would define the term "obscene" with reference to conduct. Defendants contend this failure to define "obscene" in a manner which would apply to obscene conduct which is prohibited by 11 Del.C. § 1361(a) (2) leaves that statutory prohibition unconstitutionally vague. If that prohibition is unconstitutionally vague, the defendants will not have been given fair notice their conduct was proscribed by the statute as required by Miller and in such case they were denied due process.

On the surface the Opinion of the Court in Miller lends credence to this argument:

State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, (390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968)) supra, 390 U.S., at 682-685, 88 S.Ct., at 1302-1305. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable State law, as written or authoritatively construed ... 413 U.S. at 23-24, 93 S.Ct. at 2614.

The State makes the argument that the term "material," as contained in 11 Del.C. § 1364, includes not only books, magazines, movies and other such items, but also includes conduct as well. The reasoning behind this contention is that 11 Del.C. § 1361 and § 1364 are "in pari materia," and are to be construed together. 2A Sands Sutherland on Statutory Construction, § 51.02, p. 290 (4th ed. 1973). It appears to be the State's position that if these statutes are construed together, since Section 1361(a)(2) reaches obscene conduct, the definition of "obscene" in § 1364 must also be construed to extend to obscene conduct. This argument presupposes that Section 1361 should be the controlling section and Section 1364 should be broadened to encompass all matters covered by Section 1361. Section 1364 contains the more specific language by its use of the word "material". As a general principle of statutory construction, the more specific language is entitled to greater weight than general language. Mergenthaler v. State, Del.Supr., 239 A.2d 635 (1968).

Looking to 11 Del.C. § 1361(a), parts (3), (4) and (5) contain the term "material". Part (1) refers to specific tangible objects. Part (2) refers to specific types of conduct and makes no reference to tangible objects or material.

It is clear that conduct and tangible objects or material are not used interchangeably in the section and that the word "conduct" cannot be substituted for the word "material" in 11 Del.C. § 1361(a)(3)-(5). As used in the section the term "material" does not include conduct. Thus § 1361(a) does not provide a basis for construing the definition of obscene material to encompass obscene conduct.

However, the failure of the statute to set forth a definition of obscene conduct does not render 11 Del.C. § 1361(a)(2) void for being...