Williams v. State

• Decision Date: 11 February 1981
• Docket Number: No. 60799,60799
• Citation: 277 S.E.2d 781,157 Ga.App. 494
• Court: Georgia Court of Appeals
• Parties: WILLIAMS v. The STATE.

Page 781

277 S.E.2d 781

157 Ga.App. 494

WILLIAMS v. The STATE.

No. 60799.

Court of Appeals of Georgia.

Feb. 11, 1981.

Glenn Zell, Atlanta, for appellant.

Hinson McAuliffe, Sol., Leonard Rhodes, Asst. Sol., for appellee.

BIRDSONG, Judge.

The appellant, William R. Williams, was charged with three counts merged to two and convicted of both counts of distributing obscene materials and sentenced to twelve months to serve on one count and a $2,500 fine, and twelve months on probation on the other count.

He appeals to this court the overruling of his motion and amended motion for new trial. We affirm.

1. The appellant first challenges the sufficiency of the evidence. There was evidence before the jury that the two magazines were obscene and were purchased from an employee of the Ponce deLeon Adult Book Mart on the date alleged, April 3, 1978. During the sale the appellant entered the store with a sex device in his hand, tossed the device on the counter, and asked an employee if the device was the one of which she had ordered duplicates. The store contained sales displays of sex devices with prices marked on them and the appellant's van, parked in front of the store with the motor running, contained boxes of sexual devices. There was competent testimony that the items possessed in violation of Count 3 were designed and marketed primarily for the stimulation of human genital organs and the publications charged in original Counts 1 and 2 (merged into one) appeal predominantly to the prurient interest, are patently offensive and lack serious scientific value as charged in violation of the statute (Code Ann. § 26-2101(b)(1)). There was also evidence before the jury that the appellant was an officer of the parent corporation that operated the Ponce deLeon Adult Book Mart, and the only one authorized to sign checks on the corporate account, and an officer in other corporations that operated other Atlanta adult book stores. All of the corporations had a common address (a warehouse) where appellant's van was driven after his arrest upon appellant's direction: "Okay, take it back." With this evidence, we are satisfied that appellant's connection to the store operation was sufficient so that "a rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Enumeration 1 has no merit.

2. Enumerations of error 2, 3, and 4 concern the court's precluding Mike Aranson, a member of the Texas Bar, from representing the appellant.

A motion was filed with the court by Mike Aranson, alleging he was a member of the Texas Bar, to appear pro hac vice to represent the appellant. The motions had been denied on September 14, 1979 by Judge Nick S. Lambros. The trial judge refused to allow him to act as counsel, to sit at counsel table or talk to defense counsel during the trial. The appellant was represented by a member of the Georgia Bar. Mr. Aranson is not a member of the Georgia Bar.

Mr. Aranson has no federal constitutional right to appear pro hac vice in states where he is not licensed to practice law. Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717. The appellant, although guaranteed the right to counsel by both the Federal (Sixth Amendment Constitution of the United States) and State Constitutions (Art. I, Sec. I, Para. IX; Code Ann. § 2-109), has no guarantee that he can be represented by out-of-state counsel. New Jersey v. Kavanaugh, 52 N.J. 7, 243 A.2d 225, 231, cert. den. as Matzner et al. v. New Jersey, 393 U.S. 924, 89 S.Ct. 254, 21 L.Ed.2d 259.

The Georgia Bar Rules provide that non-resident attorneys who are not active members of the State Bar of Georgia may be permitted to appear in the courts of this state in isolated cases in the discretion of the judge of such court. Code Ann. Title 9 App. Rule 1-203. This court and the Supreme Court have similar rules (Code Ann. §§ 24-3609 and 24-4507). Mr. Aranson offered no proof of his Bar admission in Texas. The trial court based his order primarily on this absence of proof. An attorney must make some showing that he is qualified and ready to appear pro hac vice (7 C.J.S. Attorney and Client § 27). We cannot say the trial court abused its discretion or acted arbitrarily by denying Mr. Aranson the visiting attorney privilege in the absence of such proof.

Inasmuch as the practice of law includes the giving of legal advice (Code Ann. § 9-401), the trial court did not err in refusing to allow Mr. Aranson to sit at counsel table or talk to defense counsel during the trial.

Enumerations 2, 3, and 4 have no merit.

3. Appellant's fifth enumeration that the court erred in overruling the appellant's motion to disqualify Judge C. Winfred Smith was considered in Spry v. State, 156 Ga.App. 74(2), 274 S.E.2d 2 and decided adversely to the appellant. We adhere to that position.

4. By his sixth enumeration the appellant contends the court erred in permitting an investigator to testify as an expert as to whether certain items were primarily designed and marketed for sexual gratification as he did not qualify as an expert; and further, because his testimony invaded the province of the jury.

Expert testimony is not necessary to prove the obscenity of sexual devices. Underwood v. State, 144 Ga.App. 684, 242 S.E.2d 339. Nevertheless, this court has recognized the use of witnesses to testify that certain devices are designed primarily for stimulation of genital organs. Simpson v. State, 144 Ga.App. 657, 242 S.E.2d 265; Underwood v. State, supra. Although characterized as expert, the witness was treated as a non-expert and required to testify to the facts from which he states his reason for his opinion whereas an expert may give an opinion upon a state of facts testified to by other witnesses. Cone v. Davis, 66 Ga.App. 229, 17 S.E.2d 849; see also Lamb v. Mayor etc. Brunswick, 121 Ga. 345, 49 S.E. 275. The investigator in the instant case met the more stringent requirement of a non-expert by relating his sources of information which included catalogues promoting sexual devices, movies shown in adult theatres and peep show booths in Atlanta, in which such devices were used, and magazines sold in Atlanta adult book stores, such as those admitted in the trial in which such devices were used. He had also seen such devices for sale...