State v. Watkins

• Decision Date: 09 August 1972
• Docket Number: No. 19471,19471
• Citation: State v. Watkins, 259 S.C. 185, 191 S.E.2d 135 (S.C. 1972)
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Louis WATKINS, Appellant.

Page 135

191 S.E.2d 135

259 S.C. 185

The STATE, Respondent, v. Louis WATKINS, Appellant.

No. 19471.

Supreme Court of South Carolina.

Aug. 9, 1972.

George S. Daly, Jr., Charlotte, N.C., and Laughlin McDonald, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen., John P. Wilson, Columbia, Sol. Marion H. Kinon, Dillon, and Paul A. Sansbury, Darlington, for respondent.

LITTLEJOHN, Justice:

Louis Watkins appeals his conviction of the crime of exhibiting obscenity, Code of Laws of South Carolina (1962) § 16--414.2. The conviction arose out of the showing of the motion picture 'Anomalies' on two occasions at a theater in Darlington. This film, shown as an exhibit on this appeal, graphically depicts a variety of bizarre and 'anomalous' acts of perverted sex behavior by naked men and women.

Watkins has asserted four broad issues upon which he seeks a reversal or new trial. Three of these concern matters which transpired in the lower court, and we deal with them first. The fourth issue concerns the constitutionality of the obscenity statutes.

The case was tried before Judge J. A. Spruill, Jr., and a jury during the June, 1971, term of the Darlington County General Sessions Court. During the jury selection the court's examination revealed that one prospective juror was the wife of the county jailer. A second prospective juror was the wife of a deputy sheriff. A third member of the jury panel was asked whether, if she were selected, she would feel any compulsion to find against the defendant in order to protect her children from movies dealing with sex. She replied affirmatively. She also said she would follow the instructions of the court. All three of these potential jurors were challenged for cause by defense counsel. Judge Spruill denied these challenges, for which Watkins alleges error.

Under Code Section 38--202 the court is required, upon motion of either party, to examine prospective jurors in order to ensure their indifference in the cause to be tried. A determination of a juror's competency is within the trial judge's discretion and is not reviewable on appeal unless wholly unsupported by the evidence. State v. Johnson, 248 S.C. 153, 149 S.E.2d 348 (1966). The record before us indicates that Judge Spruill conducted further examination of these jurors before determining their fitness. The record also discloses that defense counsel was allowed ten peremptory challenges instead of five, as provided in Code Section 38--211.

Section 16--414.2 of our Code, under which Watkins was indicted, reads as follows:

'It shall be unlawful for any person knowingly to send or cause to be sent, or to bring or cause to be brought into South Carolina for sale or distribution, or to prepare, publish, print, exhibit, distribute, or to offer to distribute in the State, or to have in his possession with intent to distribute, or to exhibit or to offer to distribute, any obscene matter.'

'Matter' is defined in Section 16--414.1(b) to include motion pictures. 'Obscene' is defined in Section 16--414.1(a):

"Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest among which is a shameful or morbid interest in nudity, sex or excretion, and which goes Substantially beyond customary limits of candor in description or representation of such matters. . . .' (Emphasis added).

In an apparent attempt to bolster its showing that the film 'Anomalies' 'goes substantially beyond customary limits of candor,' the State called two long-time residents of Darlington as witnesses. These witnesses, Robert Bristow and W. J. Hunter, testified that they had viewed the film. They further testified, over objection, that the motion picture exceeded the acceptable limits of frankness and candor in the community.

Watkins argues that, upon objection, conclusory testimony should be excluded until proper foundation is laid. At the trial, he challenged the qualifications of Bristow and Hunter. On this appeal he alleges that the lower court erred in that 'Bristow and Hunter were allowed to testify regarding contemporary community standards without any demonstration of foundation.' Again we disagree. Both of these witnesses appear to have been actively affiliated with local churches and with groups such as the Kiwanis Club, Chamber of Commerce, school board, etc. They testified that they had had occasion during the past year to discuss, with numerous persons living and working in the community, the current treatment and representation of sexual matters in books, newspapers, magazines and motion pictures.

The admission of testimony which is conclusive or opinioned, and the foundation required for its receipt, rest largely in the discretion of the trial court. 32 C.J.S. Evidence § 449 (1964). We feel that a sufficient foundation for this testimony of Bristow and Hunter was laid.

More important, though, is the fact that whether the motion picture 'Anomalies' exceeded the community standard of candor was a question of fact to be determined by the jury. Such 'standard' is dynamic and, to a degree, subjective, since it is by definition a 'contemporary' and a 'community' standard. The jury was entitled to accord much weight, some weight, little weight, or no weight to the testimony of Bristow and Hunter. But in the final analysis it was for the jury to determine and apply the so-called 'contemporary community standard.' And their determination and application are, as they must be, subject to the scrutiny of the court. This is especially important where, as here, an accused's constitutional rights are involved.

There was no abuse of discretion in the admission of the testimony of Bristow and Hunter referred to above.

On cross-examination of Bristow and Hunter, defense counsel attempted to elicit testimony as to the harmful effects, if any, of the film. The State's objections were sustained by the judge, who said:

'I don't think we are concerned with whether it does harm or not. We are only concerned with whether it is obscene.'

Watkins again alleges error. We again find none.

A crime, be it felony or misdemeanor, is simply an act done in violation of a penal law. Many crimes (e.g., arson, murder, rape) are per se harmful in each instance. Many other crimes (e.g., sale of liquor to a minor, prostitution, violation of child labor laws) do not cause discernible harm each time they are committed. Nonetheless such practices have been condemned. They are deemed inherently harmful to society. The crime of exhibiting obscenity falls into this category. To convict someone for committing this crime the State is not required to prove that harm resulted. Judge Spruill properly declined to allow defense counsel to pursue that line of examination.

Today's test for obscenity was set forth by Mr. Justice Brennan in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957):

'(W)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' (footnote omitted; 354 U.S. at 489, 77 S.Ct. at 1311).

In that opinion Justice Brennan also approved a definition of obscenity from the Model Penal Code:

'A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters.' (354 U.S. at 487, 77 S.Ct. at 1310, footnote 20).

Code Section 16--414.1(a), quoted above, 'was obviously intended to and did substantially restate' the Roth test. State v Burgin, 255 S.C. 237, 178 S.E.2d 325 (1970), rev'd. 404 U.S. 806, 92 S.Ct. 46, 30 L.Ed.2d 39 (1971).

'Being ultimately concerned only with the question whether the First and Fourteenth Amendments protect material that is admittedly obscene, the Court (in Roth) had no occasion to explore the application of a particular obscenity standard.' Mr. Justice Harlan in Manual Enterprises, Inc. v. Day, 370 U.S., 478 p. 489, 82 S.Ct. 1432 p. 1438, 8 L.Ed.2d 639 (1960). In later cases, however, the Supreme Court did have such occasion.

In Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), Justice Brennan made it clear that obscenity does not include 'material dealing with sex in a manner that advocates ideas . . . or that has literary or scientific or artistic value or any other form of social importance.' (378 U.S. at 191, 84 S.Ct. at 1680). He also affirmed that the 'contemporary community standards' aspect of the Roth test contemplates national rather than local standards.

At the close of the State's case Watkins moved for a directed verdict of acquittal. The motion was denied. Watkins then rested without presenting any evidence in defense and renewed this motion. It was again denied and the court's denial of that motion is cited as being error for three reasons: (1) That there was no competent evidence of the statutory requirement of 'contemporary community standards'; (2) That there was no competent evidence that the film was utterly without redeeming social importance; (3) That there was no evidence that the film did not bear the Motion Picture Association of America's Code Seal of Approval. ¹

There was positive evidence introduced: the film itself--certainly competent--was exhibited to the jury. But Watkins argues that the State must show evidence of what the 'contemporary community standards' are. This, he says, the State has failed to do.

We do not think it incumbent upon the State to do this. As we said earlier the jury must, in the final analysis, determine and apply these standards. The members of the jury are 'the exclusive judges of what the common conscience of the community is.' Trial court's charge in Roth, supra, 354 U.S. at 490, 77 S.Ct. at 1312. This does not mean...