State v. McKinney
| Decision Date | 10 January 1989 |
| Docket Number | No. 52421,52421 |
| Citation | 763 S.W.2d 702 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Charles McKINNEY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Steven R. Ohmer, Asst. Cir. Atty., St. Louis, for plaintiff-respondent.
Daniel R. Devereaux, St. Louis, for defendant-appellant.
In this court-tried case, defendant, Charles McKinney, was charged with three counts of promoting pornography in the second degree in violation of § 573.030 RSMo (1978) and one count of illegal possession of marijuana, a Schedule I controlled substance, in violation of § 195.020 RSMo (1978). (All further references shall be to RSMo (1978) unless otherwise noted). The alleged offenses concerning promoting pornography in the second degree occurred on November 20, 1985 involving a magazine entitled The Wet Ones (Count I); on June 29, 1985 involving a magazine entitled A-- F----ed (Count II); and on August 23, 1984 involving a magazine the title of which remains undisclosed by the record (Count III). The alleged offense concerning possession of marijuana occurred on August 23, 1984 (Count IV). A substitute indictment replaced the original information filed for Counts III and IV.
No evidence was presented as to Counts III and IV. The trial court entered judgments of acquittal with respect to these counts with no objection being offered by the state. With regard to Counts I and II, the evidence adduced at trial consisted primarily of St. Louis City Police Detective McMiller's testimony that, on June 29, 1985 and November 20, 1985, while posing as a customer, he purchased certain magazines from defendant at Bobbie's Books, an adult book store located at 1309 Convention Plaza. Defendant presented no evidence. Further facts shall be enumerated as deemed necessary for the resolution of the points raised on appeal. Defendant's motion for judgments of acquittal as to Counts I and II was overruled, and defendant was found guilty and sentenced to 180 days imprisonment and fined $1000 on Count I and sentenced to one year imprisonment and fined $1000 on Count II. The execution of the sentence of one year imprisonment on Count II was suspended, and defendant was placed on two years probation.
On appeal, defendant contends that: (1) § 573.010, the statute defining "pornographic" as applied in § 573.030, the statute under which defendant was charged, tried, and convicted, is unconstitutional; (2) the trial court erroneously overruled his objections to the use of certain police reports by the state; and (3) the sentences imposed are excessive and constitute cruel and unusual punishment.
We transferred this case to our Supreme Court for a determination of defendant's first point on appeal challenging the constitutional validity of § 573.010. Specifically, defendant claimed that under the decisions in Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) and Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the definition of "pornographic" embodied in § 573.010, as applied in § 573.030, was unconstitutional.
Section 573.010 contains the chapter definitions for pornography and related offenses. Section 573.010(1) provides:
573.010. Chapter definitions--As used in this chapter
(1) "Pornographic", any material or performance is "pornographic" if, considered as a whole, applying contemporary community standards:
(a) Its predominant appeal is to prurient interest in sex; and
(b) It depicts or describes sexual conduct in a patently offensive way; and
(c) It lacks serious literary, artistic, political or scientific value.
In determining whether any material or performance is pornographic, it shall be judged with reference to its impact upon ordinary adults;
Promoting pornography in the second degree, § 573.030, the offense under which defendant was convicted, provides:
573.030. Promoting pornography in the second degree
(1) Promotes or possesses with the purpose to promote any pornographic material for pecuniary gain; or
(2) Produces, presents, directs or participates in any pornographic performance for pecuniary gain.
The definition of "pornographic" and the offense of promoting pornography in the second degree have been repealed by our legislature. Section 573.010(8) RSMo Supp. (1987), formerly § 573.010(1), now provides:
(8) "Obscene", any material or performance is obscene if:
(a) Applying contemporary community standards, its predominant appeal is to prurient interest in sex; and (b) Taken as a whole with the average person, applying contemporary community standards, it depicts or describes sexual conduct in a patently offensive way; and
(c) Taken as a whole, it lacks serious literary, artistic, political or scientific value. Obscenity shall be judged with reference to its impact upon ordinary adults;
Section 573.010(8) became effective by emergency act on July 15, 1987 in order to maintain state law in compliance with federal law. Also effective July 15, 1987, by the same act, is a new § 573.030 now providing:
573.030. Promoting obscenity in the second degree
1. A person commits the crime of promoting pornography for minors or obscenity in the second degree if, knowing its content or character, he:
(1) Promotes or possesses with the purpose to promote any obscene material for pecuniary gain; or
(2) Produces, presents, directs or participates in any obscene performance for pecuniary gain; or
(3) Promotes or possesses with the purpose to promote any material pornographic for minors for pecuniary gain; or
(4) Produces, presents, directs or participates in any performance pornographic for minors for pecuniary gain.
2. Promoting pornography for minors or obscenity in the second degree is a class A misdemeanor unless the person has pleaded guilty to or has been found guilty of an offense under this section committed at a different time, in which case it is a class D felony.
The United States Supreme Court, in Miller, delineated a tripartite test to be used in the determination of whether material is obscene. Id., 93 S.Ct. at 2615[6-8]. The third prong of the Miller test requires the trier of fact to decide "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Id.
In Pope, the Court was called upon to decide whether, in a prosecution for the sale of allegedly obscene materials, the jury may be instructed to apply community standards in deciding the value question embodied in the third prong of the Miller test. The Court reasoned, "[j]ust as the ideas a work represents need not obtain majority approval to merit protection, neither, insofar as the First Amendment is concerned, does the value of the work vary from community to community based on the degree of local acceptance it has won." Pope, 107 S.Ct. at 1921[1-3]. In finding the jury instruction at issue unconstitutional, the Pope Court concluded that "[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole." Id. (footnote omitted).
On transfer, our Supreme Court noted that facial invalidation of the repealed statute would not serve the purpose of preventing future prosecutions under a constitutionally defective standard. Defendant could still be retried, because he could not claim that the repealed statute failed to give him notice that the sale of obscene materials would be prosecuted. State v. McKinney, 756 S.W.2d 527, 529-30 (Mo. banc 1988).
Our Supreme Court, retransferring the cause to our court, concluded that:
In these circumstances, there is no reason to order retrials if it can be said beyond a reasonable doubt that the convictions in these cases were not affected by the erroneous wording of the statute. An otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.
Id. at 530 (citation omitted). Therefore, we must determine whether the constitutional error was harmless and review defendant's remaining points.
We shall direct our attention to defendant's second point, since it is dispositive of this appeal. In this point, defendant contends that the trial court erred in overruling his objections to the use of certain police reports to refresh the recollections of St. Louis City Police Detectives Blanks on redirect examination and McMiller on direct examination. Defendant essentially argues that: (1) a proper foundation was not laid prior to the use of these reports; (2) when a witness testifies unhesitatingly on direct examination to certain facts, it is improper for the state to use a police report to ensure that the witness changes his testimony to supply different facts; and (3) even if a witness needs his memory refreshed, reading a writing prepared by someone else is improper unless the witness testifies that he knows the writing to be a correct statement of the facts. The state argues that defendant did not preserve this issue for appellate review due to lack of specific objections at trial and failure to file a motion for new trial. We find defendant's objections to be adequate and note that, "[i]n cases tried without a jury a motion for new trial is not necessary to preserve contentions for appellate review." State v. Cole, 706 S.W.2d 917, 918 (Mo.App.1986); Rule 29.11(e)(2)(A).
The crux of the charge against defendant was the promotion of pornographic materials for pecuniary gain. Therefore, it was incumbent upon the state to establish the sale of certain materials which were pornographic....
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