Davison v. StateDavison v. State
Appellant, an outdoor theatre operator, was convicted by a jury of violating
The factual circumstances of the offense warrant little elaboration. On the evening of February 12, 1970, Robert Hooten, age 15, stopped his car at the ticket booth of the Dragon Drive-In Theatre located in Alachua County. The attendant (appellant was operating the concession stand) accepted the proffered admission price without requesting identification or making inquiry as to age. Hooten was admitted into an exhibition of “The Daisy Chain,” “Kiss Me Quick,” and previews of “The Secret Sex Lives of Romeo and Juliet.” A Sheriff Department investigator had supplied Hooten with the admission price in advance; this investigator followed the boy into the Drive-In in a separate car. On February 14, appellant was arrested for violation of
The points on appeal may be divided logically between those relating to events at trial and those relating to the constitutionality of the statute.
But appellant complains that when the attendants were on the witness stand, proffers of their testimony relating to the receipt of instructions were refused. It is contended that this was in error because this “corroborating” testimony was essential to the defense. We fully agree that a defendant is entitled to have his employees testify as to instructions given them. However, we note that the proffered testimony was not presented as being “corroborative” at the time of the proffer since appellant had not yet testified. The proffer was not renewed subsequent to appellant‘s testimony, which would have been acceptable procedure. Both attendants were allowed to testify as to their methods of checking identification, and appellant testified as to his instructions to them. This
Appellant also contends that the trial court committed reversible error because the jury was allowed to view certain still photographs of scenes from a movie which was not viewed by the jury and thus stricken from evidence. The Sheriff‘s Department took numerous still photographs from “The Daisy Chain,” “Kiss Me Quick” and the previews of “The Secret Sex Lives of Romeo and Juliet,” as these films were being shown on the screen at the Dragon Drive-In. These were admitted into evidence. On the day of the trial, the jury was shown the “Romeo and Juliet” previews and the movie, “The Daisy Chain.” “Kiss Me Quick” was not shown. The trial court ordered the print of the film “Kiss Me Quick” removed from the exhibits because it had not been seen; he did this pursuant to a timely objection by appellant. However, appellant made no move to object to the stills from “Kiss Me Quick“. Having failed to object to the error he now complains of, the appellant is precluded from asserting this as a ground for reversal. York v. State, 232 So.2d 767 (4th D.C.A., Fla. 1969).
Appellant presents arguments against the constitutionality of
Appellant‘s first point relating to alleged unconstitutionality is that:
“The cited statute provides for an arrest and seizure of questioned material without notice and without a prior judicially supervised adversary hearing to determine whether probable cause exists for such arrest and seizure.”
We do not find this to be the case. This is not a censorial action;1 it is a prosecution for a criminal offense relating to exposing minors to harmful materials. The cited statute defines the offense and provides that a violation constitutes a misdemeanor. It is silent as to arrest and seizure. These events are the result of warrants issued upon probable cause when an alleged violation has occurred, just as in any case in which the violation of a criminal statute is involved.2 Pursuant to valid warrants, the materials directly involved in the perpetration of the offense were taken and held as material evidence. When this occurs, nothing prevents the operator of a theater from showing another print of the film since the seizure is related directly to the specific offense giving rise to the warrant.
Appellant‘s second point relating to the alleged unconstitutionality of
Our first response to this assertion is to note again that upon the facts as given by appellant in this case and agreed upon by the State, nothing would have prevented appellant from securing and showing another print of the film. Therefore, the asserted rationale for the necessity of a unique requirement of “prompt appellate consideration and final determination” is without merit in appellant‘s circumstance. Further, we continue to maintain that there is a vital and valid distinction between “prior restraint” statutes involving administrative censorial schemes or broad injunctive prohibitions aimed at preventing circulation, and criminal prosecutions involving acts committed in violation of a criminal statute. Note that Freedman was involved with restraint proceedings initiated outside of the judicial system; in this situation, a prompt judicial review is a constitutional necessity. But where a criminal prosecution is initiated in a court of law, the deficiencies of a non-judicial forum dissipate, and appellate review follows the ordinary course of litigation. This is suggested by the case of Interstate Circuit Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968), wherein the United States Supreme Court, citing its prior decision in Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968), held:
“Appellants also assert that the city ordinance violates the teachings of Freedman v. Maryland, supra, because it does not secure prompt state appellate review. The assurance of a `prompt final judicial decision’ (380 U.S., at 59, 85 S.Ct. 734) is made here, we think, by
the guaranty of a speedy determination in the trial court.” 390 U.S., at 690, Note 22, 88 S.Ct., at 1306.
This question is treated in Meyer v. Austin, supra, 319 F. Supp. at pages 467-468, but we do not find the majority opinion persuasive. Again, our thinking is reflected in the dissent of the Honorable George C. Young, District Judge, appearing at pages 474-476. The Federal Constitution does not require that a specific provision for prompt appellate review be written into the provisions of
Appellant‘s third point relating to the alleged unconstitutionality of the statute is that:
“AN ANALOGOUS STATUTE, SECTION 847.011 FLORIDA STATUTES 1969, AS AUTHORITATIVELY INTERPRETED BY THE FLORIDA SUPREME COURT AND LOWER FLORIDA COURTS, PRESCRIBES AN INAPPROPRIATE LOCAL STANDARD FOR THE IDENTIFICATION OF OBSCENITY.”
Specifically, appellant refers to
“I further instruct you that the prevailing standards in the adult community as a whole with respect to what is suitable for minors means that standard which prevails in Alachua County, Florida, as a whole rather than in any particular locale of the Nation.”
The paramount United States Supreme Court case containing a discussion of the “community versus national” standards issue is Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). Though paramount, the case cannot be considered as definitive or dispositive of this issue since the Court could not reach a majority opinion, and no less than six separate opinions and one concurrence without opinion were filed. Of the four Justices taking a position on standards in Jacobellis, two (Justices Brennan and Goldberg) felt that “community” meant “national standards,” and two (Chief Justice Warren and Justice Clark) were persuaded that “community” referred to local community standards.
Because the Court in Jacobellis did not announce a majority decision, we think it proper to consider the positions taken by a majority of the Justices on the Court as currently constituted. In Kingsley Int‘l. Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959), Mr. Justice Black indicated his acceptance of local standards when he spoke of value judgments “as to what movies are good or bad for local communities“; 360 U.S., at 690, 79 S.Ct., at 1366. In Kingsley Books, Inc. v. Brown, 354 U.S. 436, at 446-447, 77 S.Ct. 1325, at 1331, 1 L.Ed.2d 1469 (1957), Justices Douglas and Black noted that “* * * Juries or judges may differ in their opinions, community by community. * * *” And recently, in Hoyt v. Minnesota, 399 U.S. 524, 90 S.Ct. 2241, 26 L.Ed.2d 782 (1970), the Chief Justice and Justices Harlan and Blackmun rejected (albeit in a dissent) the notion that the constitution imposes a “national and uniform measure.”
Inasmuch as the United States Supreme Court has initiated the “community” test, but has not yet announced a majority decision specifically treating this issue, we now espouse the view that “community” is to be interpreted within the framework of the geographic limits of the jurisdiction in which the cause is brought to trial.8 Therefore, we find that the instruction set out in quotation above was not erroneous, Alachua County being the limit of the jurisdiction of the trial court in this cause. We are particularly concerned that a local standard interpretation of “community” should apply in relation to juveniles, since we view the raising of children as being an inherently local community concern.9
For the foregoing reasons, we conclude that
It is so ordered.
ROBERTS, C.J., BOYD, McCAIN and DEKLE, JJ., and JOHNSON, District Court Judge, concur.
ERVIN, J., dissents with opinion.
ERVIN, Justice (dissenting):
This is a threshold case for Florida which, regardless of its present posture as a criminal conviction for an alleged violation of
With the decisional uncertainties reflected in the majority opinion in mind, I am extremely reluctant at this unsettled and uncertain stage of national law to legally support state suppression of such productions, etc., through criminal prosecutions unless clearer defined national standards are provided therefor either by the Congress or the Supreme Court of the United States authoritatively comporting with our national Bill of Rights freedoms.
There have been too many failures, too many “backfires” under community standards of states generating opposite results from those which the conscientious sponsors of suppression of things forbidden in areas of entertainment, education, appetite, and personal diversions intended for the promotion of good public morals, for us at state level to move precipitously. The celebrated Scopes case is a good example. Another was the failure to suppress bingo gambling before it was legalized.
The “bleached bones” of “noble experiments” of earlier suppression efforts in such areas are familiar landmarks strewing the trail of our history.
Many of Shakespeare‘s great plays would never have seen the light of day had the full fury of the Puritanical period of England arrived some forty years earlier.
Rather than push forward state criminal prosecutions in this uncertain but critical freedom-related area — as censorious precedents of suppression bearing our imprimatur — I think it would be the better part of judicial wisdom to stay the conviction in this case and retain jurisdiction until cases such as Meyer v. Austin, 319 F. Supp. 457 (M.D.Fla. 1970) are decided by the Supreme Court of the United States.
These Federal cases when decided may give us clearer guidelines for the application of
I think this course of caution is more appropriate and would afford appellant judicious relief from precipitous state action until his concomitant federal rights are delineated with greater clarity in the Federal forum.
Notes
847.013(1) (f): “`Harmful to minors’ means that quality of any description, exhibition, presentation, or representation, in whatever form * * * when it:
“2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors. * * *”