State v. LeBlang

• Decision Date: 12 July 1988
• Docket Number: No. KA-8660,KA-8660
• Citation: 530 So.2d 601
• Parties: STATE of Louisiana v. Jay M. LeBLANG and Wonderful World of Video. 530 So.2d 601
• Court: Court of Appeal of Louisiana — District of US

Page 601

530 So.2d 601

STATE of Louisiana v. Jay M. LeBLANG and Wonderful World of Video.

No. KA-8660.

530 So.2d 601

Court of Appeal of Louisiana,

Fourth Circuit.

July 12, 1988.

Rehearing Denied Aug. 16, 1988.

Harry F. Connick, Dist. Atty., William A. Marshall, Asst. Dist. Atty., New Orleans, for the State.

John Wilson Reed, Lori R. Fregolle, Glass & Reed, New Orleans, for defendant.

Before BARRY, CIACCIO and PLOTKIN, JJ.

PLOTKIN, Judge.

Appellants, Jay LeBlang and his partially-owned corporation, Wonderful World of Video, seek reversal of their convictions by a jury under Louisiana's obscenity statutes for the rental of adult videocassettes to police officers.

Appellants were charged with three counts of violating LSA-R.S. 14:106, relative to obscenity, for distribution of the movies "Sex Boat," "Irresistible" and "Behind the Green Door," which were rented or sold to undercover New Orleans Police officers on different occasions.

In 1982, LeBlang had entered an agreement with the district attorney's office, promising that he would refrain from dealing in obscene materials in return for the district attorney's promise not to prosecute him for the rental of "Sex Boat," the first of the three movies distributed. When he subsequently sold "Irresistible" and "Behind the Green Door," he was prosecuted on all three counts.

The jury found the defendants not guilty on Count I, relative to "Sex Boat," and guilty on Counts II and III, relative to "Irresistible" and "Behind the Green Door," respectively. LeBlang was sentenced to one year at hard labor for each count, sentences to run concurrently. The sentences were suspended and he was placed on two years inactive probation with the condition that he pay $2,000 on each count plus court costs, or serve thirty days in default. Wonderful World of Video was fined $2,000 on each count and ordered to pay court costs. We reverse.

Appellants specified three assignments of error, all dealing with jury instructions. They are:

1. The trial judge erred in restricting the jury to consideration of the "contemporary community standards" in Orleans Parish. (Emphasis added.)

2. The trial judge erred by including the word "lustful" in the definition of "prurient interests."

3. The trial court erred in refusing to give a special jury instruction that the agreement between the defendants and the district attorney is not evidence of the law of obscenity or of whether defendants violated the law.

LIMITATION OF COMMUNITY

La.R.S. 14:106, relative to obscenity, provides, in pertinent part, as follows:

Obscene material is any tangible work or thing which the trier of fact determines (a) that the average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest, (b) depicts or describes in a patently offensive way, hard core sexual conduct specifically defined in Paragraph (2) above, and (c) the work or thing taken as a whole lacks serious literary, artistic, political, or scientific value. (Emphasis added.)

Proper Definition of Community

The jury instructions in the instant case included the following statement, made on the State's request and over the defendant's objection:

In determining whether the magazine [sic] appeals to the prurient interest and is presented in a patently offensive way, you must apply the contemporary community standards for the Parish of Orleans. In assessing those community standards you are permitted to draw upon your knowledge of the community from which you come. You, the jury, are the sole judges of the contemporary community standards of New Orleans, just as you are the judges of all questions of fact. In making this determination, you are not to consider your own personal opinion of what is good, bad, desirable, or undesirable. You are not to condemn by your own standards if you believe them to be stricter than those generally held, nor are you to exculpate or excuse by your own standards if you believe them to be more tolerant than those that are generally held. In determining the contemporary community standard you should not confine yourself to your own neighborhood, but to the--but to consider the entire Parish of Orleans. (Emphasis added.)

The above statement, which begins erroneously by referring to magazines, constituted the entire instruction concerning the applicable "contemporary community standards."

The "contemporary community standards" test for judging obscenity was approved by the United States Supreme Court in Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957). The three-part test reflected in the Louisiana statute quoted above, which includes the "contemporary community standards" prong, was developed sixteen years later in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973).

Although the United States Supreme Court made no attempts to define the relevant "community" in the Roth decision, the argument that uniform national standards must be applied was rejected in Miller, supra, 413 U.S. at 31, 93 S.Ct. at 2619. The court concluded that "neither the State's alleged failure to offer evidence of 'national standards,' nor the trial court's charge that the jury consider state community standards, were constitutional errors." Id.

The next year, the Court again considered the question in two separate opinions. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) and Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). In Hamling, supra, the Court summarized the holdings of Miller and its progeny, saying they allow "a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes." Id. 418 U.S. at 105, 94 S.Ct. at 2901. In Jenkins, supra, the Court approved jury instructions directing the application of "contemporary community standards" without specifying the relevant "community," stating that "the Constitution does not require that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide [sic] community." Id. at 157, 94 S.Ct. at 2753. The choice of whether to define an obscenity offense using precise geographic terms or to leave the relevant community unspecified was specifically left to the States. Id.

On the basis of this holding, the appellants argue that the judge's instructions in the instant case improperly usurped the legislature's power to select the relevant community. The Louisiana Revised Statute defining obscenity, quoted above, leaves the relevant community unspecified. Therefore, the appellants contend, the trial court improperly restricted the jury's deliberations.

The argument has merit. Although no Louisiana court has spoken definitively concerning whether the jury instructions in obsenity cases can define the relevant community in terms of parish or other less than statewide standards, Louisiana Supreme Court jurisprudence argues against such instructions. In upholding the Louisiana obscenity statute against a challenge that it was Constitutionally vague for failure to define community standards, the court stated in State v. Amato, 343 So.2d 698 (La.1977) as follows:

Furthermore, in Miller and the cases following it the United States Supreme Court has made it clear that a state may choose to define an obscenity offense in terms of "contemporary community standards" without further specification, as Louisiana has done, thus permitting juries to rely on the understanding of the community from which they come as to contemporary community standards; or a state may choose to define the standards in more precise geographical terms, as has been done in other jurisdictions.

The court indicated that the jury should be permitted to rely on the understanding of the community from which they come as to contemporary community standards. Limiting the community in the manner indicated in the jury instruction in the instant case is therefore improper.

The bulk of other state and federal courts which have spoken on this issue agree with this interpretation. Citing Miller, supra and Hamling, supra, the United States Eighth Circuit Court of Appeals stated in United States v. McManus, 535 F.2d 460 (8th Cir.1976), cert. denied, 429 U.S. 1052, 97 S.Ct. 766, 50 L.Ed.2d 769 (1977) that "one of the constitutional standards used to determine obscenity is local rather than national in character." Id. at 464. See also, State v. Wein, 162 N.J.Super. 159, 392 A.2d 607 (Ct.App.Div.1978) rev'd on other grounds, 80 N.J. 491, 404 A.2d 302 (1979).

Other state courts have gone even further, holding that anything less than a state-wide standard, such as the parish standard employed by the trial court in this case, is improper. Especially pertinent is the language of the Supreme Court of Wisconsin in Court v. State, 63 Wis.2d 570, 217 N.W.2d 676 (1974), which stated that "[c]ounty standards would present a problem since some communities cut across county lines." Id. at 577, 217 N.W.2d at 679. Use of a county standard, the court stated, would result in

"areas where portions of what clearly are recognizable as integrated local communities would be governed by different standards. What would not be obscene on one side of the street might be obscene on the other."

This is precisely the problem with applying parish standards in the New Orleans metropolitan area.

Alabama's Supreme Court agrees with the Supreme Court of Wisconsin, as revealed by the following quote:

Alabama would be faced with many problems in determining the exact scope of a community if it were smaller than the state as a whole. On first impulse, one would think that the county would be an appropriate geographical unit for establishing standards because one assumes a natural relationship between the county and the jury vicinage. However, this assumption is not always accurate, for in Alabama, there are a number of counties that have...