State v. Walters, 82-KA-1422
| Decision Date | 17 October 1983 |
| Docket Number | No. 82-KA-1422,82-KA-1422 |
| Citation | 440 So.2d 115 |
| Parties | STATE of Louisiana v. Tina L. WALTERS and Janice Chatman. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., John H. Craft, Jack Peebles, Asst. Dist. Attys., for plaintiff-appellee.
Ronald Rakosky, New Orleans, Burton W. Sandler, Counsel for defendant-appellant.
This is an appeal by two codefendants who were convicted of attempted obscenity. Principal issues involve the lack of a pre-arrest adversary hearing, the joinder of the defendants, the constitutionality of the statute, the sufficiency of the evidence, and the excessiveness of the sentence. 1
Two police officers, dressed in casual attire so as not to reveal their identity as policemen, went to the Ellwest Stereo Theatre, located on Bourbon Street in the New Orleans French Quarter, to investigate reports of "nude dancing". They purchased tokens from a cashier and were directed to separate booths within the establishment. Each booth had a glass window, which was covered by a screen that could be raised to allow the occupant to view a woman behind the glass.
The first officer entered the booth and deposited a token. The screen rose, permitting the officer to see a young woman (later identified as Tina Walters) clad in a black negligee. When the woman told the officer that she would take off the "top" if he would "tip" her one dollar, he inserted a dollar bill through a small hole in the glass (pointed out by the woman). After removing the top and moving about slightly, the woman suggested that she would remove the negligee panties if the officer would give her an additional dollar. He did--and she did. She then moved closer to the glass and prominently displayed her pubic hair and vagina next to the glass by moving her pelvis in an undulating motion. There was no musical accompaniment to any of her movements.
Shortly thereafter, the screen lowered, signalling the "end of the show". The woman told the officer that he could see a "better show" if he would move to a larger booth at the end of the row. 2 The officer went to the designated booth and inserted four tokens (worth one dollar). When the screen raised, the officer saw the same woman behind a body-length glass window, again dressed in the black negligee. At her suggestion, the officer gave her five dollars by inserting the money through a hole in the glass. She then removed her garments, lay on her back, placed her legs against the glass window and began to thrust her pelvis in an up-and-down and back-and-forth motion, giving her "patron" a close and unobstructed view of her vagina and pubic hair. There was no musical accompaniment to this motion, which continued for a few minutes until the screen lowered.
In the meantime, the second officer had gone through a very similar experience in a different booth with another young woman (later identified as Janice Chatman). 3 The two officers met and discussed their similar observations, and they then arrested the cashier and the two young women.
The prosecutor filed a single bill of information charging Chatman and Walters with obscenity in violation of La.R.S. 14:106A(1) by exposing their genitals in a public place with intent to arouse sexual desire. 4 After trial by jury, both defendants were found guilty of attempted obscenity. Each was fined $1,000 and given a suspended one-year jail term, with two years of probation. Each was also ordered to pay $74 in court costs.
Defendants contend that the trial court erred in denying their pretrial motion to quash, in which they argued that La.R.S. 14:106 F required the state to provoke an adversary hearing to have their conduct declared obscene before they could be arrested or prosecuted for engaging in that conduct.
After a substantial amount of First Amendment litigation of "prior restraint" issues, the Louisiana Legislature enacted the prior adversary hearing section of the obscenity statute in a laudable effort to provide "sensitive tools" to avoid the problems. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); State v. Eros Cinema, 262 La. 706, 264 So.2d 615 (1972); Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980); Parish of Jefferson v. Bayou Landing, 350 So.2d 158 (La.1977). The statute provides for a judicial determination that certain "motion pictures, printed materials, and photographic materials" are obscene before an exhibitor or distributor can be arrested and prosecuted for displaying or selling those materials. 5
Thus, the prior adversary hearing requirement for all but the most obvious pornography is only applicable to printed matter, photographs and films. 6 This conclusion not only is apparent from the language of the statute, but also is logical from an analysis of the nature of the protection sought to be provided. A film, photograph or item of printed material is "fixed" and can readily be examined by a court at an adversary hearing for the purpose of determining its obscenity. A "live" performance is an entirely different sort of thing and is much less susceptible of being recaptured or recast in the courtroom context of the adversary hearing. Moreover, since an adversary hearing is not constitutionally required before criminal liability may attach and prosecution may be instituted, the Legislature could properly restrict the added protection only to "non-hard core" printed matter, photographs and films. See Delta Book v. Cronvich, 304 F.Supp. 662 (E.D.La.1969), Rubin, J. dissenting; Milky Way Prod., Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y.1969), aff'd per curiam sub nom., New York Feed Co. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970); United States v. Young, 465 F.2d 1096 (9th Cir.1972).
The trial judge correctly ruled that the prosecution was properly instituted, despite the lack of a prior judicial determination that the charged conduct was obscene.
Defendants contend that they were misjoined as defendants over their objections, arguing that the conduct charged to be criminal consisted of separate acts and that neither participated in any manner in the other's acts.
Although the separate conduct of each defendant singularly constituted the offense charged against each, the evidence nevertheless clearly demonstrated a common, ongoing, commercial, criminal enterprise, in which these two young women and others not charged in this indictment were engaged. The striking similarity of the defendants' methods of operation, the display of their lewd conduct in the same commercial establishment (which had as its obvious purpose the promotion of such pornography), and the temporal proximity of the similar conduct are all factors which support the state's theory of joinder of defendants.
Defendants were obviously aware of their joint purpose and of their individual participation as part of one overall scheme. The uniformity of their lewd displays indicated a design as part of a single criminal plan. They were "so interconnected in time, place, manner as to constitute a common scheme or plan". United States v. Santoni, 585 F.2d 667, 673 (4th Cir.1978).
Furthermore, there is absolutely no showing of any possible prejudice which could have ensued from their joint trial. 7 See United States v. Martin, 567 F.2d 849 (9th Cir.1977); La.C.Cr.P. Art. 921. The similarity of the evidence against each and the essentially uncontested nature of the facts make it difficult to envision any benefit which either could have derived from a separate trial, other than some speculative benefit which could have been derived from the fact that trying the case twice might have been more difficult for the state and would have consumed more judicial time of the trial court.
The trial court did not commit reversible error in refusing to quash the indictment and in trying the two defendants in a single trial.
Defendants first contend that the trial judge erred in denying their motion for a new trial, arguing that their conduct did not constitute a violation of La.R.S. 14:106A(1), which, at the time of the offense, proscribed the "intentional ... [e]xposure of the genitals, pubic hair, ... vulva, ... in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive". (Emphasis supplied) See note 4, above. Defendants argue that the charged conduct did not occur in a public place, inasmuch as their "performances" were observable by only the single patron in the booth.
Section 106A(1) was amended in 1979. The former statute prohibited intentional exposure "in any location or place open to the view of the public or people at large such as a street, highway, neutral ground, sidewalk, park, beach, river bank or other place or location viewable therefrom...." This court interpreted that phrase in State v. Muller, 365 So.2d 464 (La.1978), a case involving a defendant who intentionally exposed his penis in a supermarket. The Muller decision did not turn on whether defendant acted "with intent to arouse sexual desire" or whether he intentionally exposed himself, but on whether a supermarket was a place open to public view, as contemplated by the statute. In giving a narrow construction to the term, this court determined that the Legislature had intended to include only places like parks, sidewalks, parking lots, roads and the like, and not to include buildings and other commercial establishments open to the public, such as supermarkets and department stores.
The legislative intent of Act 252 of 1979, which adopted the present broader language, was made very clear in the Act's title, which states that the...
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