State v. Eakes

• Decision Date: 05 April 1973
• Docket Number: No. 11061,11061
• Citation: 87 S.D. 247,206 N.W.2d 272
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Norman EAKES, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 272

206 N.W.2d 272

87 S.D. 247

STATE of South Dakota, Plaintiff and Respondent, v. Norman EAKES, Defendant and Appellant.

No. 11061.

Supreme Court of South Dakota.

April 5, 1973.

Rehearing Denied May 9, 1973.

Lee R. Burd, Marvin K. Bailin, Christopherson & Bailin, Timothy J. Nimick, Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellant.

Gordon Mydland, Atty. Gen., Michael J. McGreevy, William J. Srstka, Jr., Asst. Attys. Gen., Pierre, for plaintiff and respondent.

WINANS, Justice.

The defendant in this case was charged with and found guilty by the municipal court of Sioux Falls, South Dakota of possession with intent to exhibit obscene matter, contrary to SDCL 22--24--12. To understand the rather numberous assignments of error made by the defendant in his appeal it is necessary to set forth with some detail the factual situation.

On August 10, 1971, two Sioux Falls police officers, Edgar Flowers and Max Madsen, while wearing plain clothes, purchased tickets to view two films, 'Danish Pastry' and 'Obscene Plot', at the Studio I Theater. These officers had previously received complaints as to these films. After sitting through the showing of both films the officers returned to the police department, swore out a complaint against the defendant and obtained an arrest warrant signed by the judge of the municipal court. The officers then returned to the theater and placed the defendant under arrest. The defendant, Eakes, was the person from whom the officers had purchased their tickets to view the film and upon their return the second time, they found the defendant standing near the ticket counter in the lobby of the theater in close proximity to both the projection area and the rolls of tickets. After displaying the arrest warrant to the defendant one of the officers walked through a set of drawn curtains into the area designed for the seating of patrons where 18 to 30 people were viewing one of the named pictures being projected on the screen. The officer returned to the lobby where the defendant was still standing and opened a door to the projection room. The officer requested that Mr. Eakes remove the rolls of film which they then took, and upon request they also were given the tickets. The officers testified that the projection room was very small, in close proximity to where the defendant was standing and there were holes in the wall of the projection room through which the film was being projected upon the screen. They testified they made the arrest and subsequent seizure of the film on their own determination as to the content of the film after they had viewed it. No search warrant was issued in this case.

On August 11, 1971, the defendant moved the court to return the films and tickets and to suppress their use as evidence against him. After a hearing the following day defendant's motion was denied. Mini-Kota Art Theaters thereafter moved for restoration of the seized property under SDCL 22--24--22. Hearing was held on the motion at the time of defendant Eakes' preliminary hearing, August 17, 1971, pursuant to agreement of the parties. The court denied the motion finding probable cause to believe the films to be obscene. The defendant was bound over for trial. The State's case consisted of the testimony of the two arresting officers and the showing of the films previously seized and their reception into evidence, and cross-examination of defendant's witness. The defense consisted of testimony from a church leader, a magazine and book distributor, a housewife and mother, a psychiatrist, a working man and father, and the attorney for the corporation. The defendant also introduced into evidence books, magazines and certain pages of the Sioux Falls Argus Leader containing advertisement for Studio I.

The defendant appeals from the judgment of the court which found him guilty.

The questions presented by the numerous assignments of error are set forth by the defendant in four separate points in the following language:

'1. Did the Court err in permitting the use of two films as evidence against defendant Eakes because the films were the product of an unlawful search and seizure performed under authority of certain sections of SDCL 22--24 which are unconstitutional abridgments of defendant's right to freedom of expression, thereby violating defendant's rights under the First, Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States and corresponding sections of the Constitution of the State of South Dakota?

2. Was there sufficient evidence to support a finding that the films used as evidence against defendant were 'obscene' as that term is defined by law?

3. Did the systematic exclusion of evidence offered by defendant showing that the films were not 'obscene,' as that term is defined by law, deprive the defendant of a lawful defense?

4. Was there sufficient evidence to support a finding that the defendant committed the offense charged with the intent required by law to be proven against him as an element of that offense?'

It was held in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793,

'Motion pictures are within the ambit of the constitutional guarantees of freedom of speech and of the press. Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098. But in Roth v. United States and Alberst v. California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, we held that obscenity is not subject to those guarantees. Application of an abscenity law to suppress a motion picture thus requires ascertainment of the 'dim and uncertain line' that often separates obscenity from constitutionally protected expression. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 9 L.Ed.2d 584, 590; see Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 2 L.Ed.2d 1460, 1472. ²'

Note 2 in the opinion by Mr. Justice Brennan in the Jacobellis case states the law applicable to our case:

'It is too late in the day to argue that the location of the line is different, and the task of ascertaining it easier, when a state rather than a federal obscenity law is involved. The view that the constitutional guarantees of free expression do not apply as fully to the States as they do to the Federal Government was rejected in Roth-Alberts, supra, where the Court's single opinion applied the same standards to both a state and a federal conviction. Cf. Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726, 737; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, pp. 660, 661.'

Under point 1 of appellant's appeal he argues that the seizure was not justified because it was the product of a warrantless search and because there was no adversary hearing or other judicial proceeding directed to the issue of obscenity prior to seizure. ¹ In the recent case of State of Minnesota v. Carlson, Minn., 202 N.W.2d 640, the Supreme Court of Minnesota held that obscene materials are not protected under the first amendment. We quote from that case with approval as follows:

'The United States Supreme Court in a series of decisions has attempted to spell out certain rules applicable to the consideration of obscenity cases. One of the leading cases in this field is Roth v. United States, (citation omitted). In that case, Roth, a New York businessman, was charged with using the mails to solicit sales of obscene materials in violation of the Federal obscenity statute. 18 U.S.C.A. § 1461. His conviction was affirmed. In that case the majority of the court explicitly rejected the argument that obscenity is within the area of constitutionally protected speech or press under the First and Fourteenth Amendments. Subsequent cases have not changed this express statement but have reaffirmed it. In United States v. Reidel, 402 U.S. 351, 354, 91 S.Ct. 1410, 1412, 28 L.Ed.2d 813, 816 (1971), the court held:

'* * * Roth has not been overruled. It remains the law in this Court and governs this case.'

In the Roth case the supreme court formulated a test to be applied in determining whether material is obscene (354 U.S. (at) 489, 77 S.Ct. (at) 1311, 1 L.Ed.2d (at) 1509):

'* * * (W)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."

The court in State v. Carlson, supra, also wrote:

'If any pattern has developed from the decisions, it appears that hard-core pornography is outside of the scope of Redrup, whatever its application is claimed to be. Mr. Justice Stewart in his dissent in the Ginzburg (Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31) case indicated that hardcore pornography is obscene and is not protected. He defined hard-core pornography as follows (383 U.S. (at) 499, note 3, 86 S.Ct. (at) 957, 16 L.Ed.2d (at) 54):

'* * * Such materials include photographs, both still and motion picture, with no pretense of artistic value, graphically depicting acts of sexual intercourse, including various acts of sodomy and sadism, and sometimes involving several participants in scenes of orgylike character. They also include strips of drawings in comic-book format grossly depicting similar activities in an exaggerated fashion. There are, in addition, pamphlets and booklets, sometimes with photographic illustrations, verbally describing such activities in a bizarre manner with no attempt whatsoever to afford portrayals of character or situation and with no pretense to literary value. All of this material * * * cannot conceivably be characterized as embodying communication of ideas or artistic values inviolate under the First Amendment.'

When confronted with hard-core pornography, the United States Supreme Court will affirm the lower court or deny certiorari. We adopt the above-quoted definition of hard-core pornography and hold that such materials have no constitutional protections.'

This court likewise adopts the above quoted definition of ...