James E. RHODES, Appellant,
v.
The STATE of Florida, Appellee.
Supreme Court of Florida.
*352 Paul Shimek, Jr., Pensacola, for appellant.
Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
DEKLE, Justice.
We deal here with the "old" Florida obscenity statute, § 847.011, which continues as law.[1] Two movie films publicly exhibited by appellant at his Navy Point Adult Theater in Pensacola, titled "He and She" and "Sex Family Robinson on the Farm" were found by a jury to be obscene in violation *353 of Florida's 1967 obscenity statute, § 847.011, which prohibits the sale, distribution, showing or possession of "any obscene, lеwd, lascivious, filthy, indecent, sadistic or masochistic book, magazine ... photograph, motion picture film... ." There is no further amplification of these words in the statute[2] except (11)[3] setting forth the Roth test.[4]
Inasmuch as § 847.011(8)(b) injunctive proceedings were not invoked in this cause, the injunctive portion of the statute is of course not involved here.[5]
Appellant's offense occurred on May 5, 1971, under the earlier statute in question, § 847.011 to which our holding must of coursе be restricted, despite the recent June 21, 25, 1973, "cluster" of eight U.S. Supreme Court opinions on this perennial and "seemingly intractable" problem of obscenity.[6]
Appellant launches the following missiles of constitutional attack:
(1) unlawful search and seizure precluding admission of the films into evidence;
(2) non-obscenity of the films in question as a matter of law;
(3) unconstitutionality of Fla. Stat. § 847.011 because:
a) the statute does not provide for an adversary judiciаl hearing on obscenity prior to issuance of the warrant of seizure;
b) national and not contemporary community standards apply;
c) neither the statute, court rule nor practice and procedure in the courts provides for a prompt and final determination of the alleged obscenity.
SEIZURE WAS PROPER
Factually, appellant was tried and convicted by a jury based upon an indictment for violation of Fla. Stat. § 847.011, F.S.A. The grand jurors viewed either all or part of the two films involvеd. Some jurors viewed all of one film but not all of the other. Based upon affidavits submitted by the grand jurors and founded upon their collective viewing of the films as to content, the circuit judge issued a warrant for seizure of the films in question without a prior adversary judicial hearing. Immediately thereafter, the film was seized and the next day the indictment was returned by the grand jury against appellant. Motion *354 to suppress was denied. During the trial the films were actually shown to the jury, then testimony was taken. The trial judge in acting upon appellant's motions expressly declared Fla. Stat. § 847.011, F.S.A., constitutional and this direct appeal followed.[7]
Upon appellant's first challenge seizure he cites Roaden v. Kentucky, (1973),
EX POST FACTO APPLIES
The new U.S. Supreme Court cases are at once both amplifying and more restrictive: they are expansive in 1) expressing the principle of "authoritative construction"[10] to amplify the statutory language in order to meet whatever test is applicable on the date of the offense in question, and 2) in laying down a prospective new test which is less restrictive than Roth-Memoirs; but these new holdings also more severely limit the state in its permissible statutory regulation of obscenity to so-called "hardcore" materials of sexual acts expressly defined either in the statute or by authoritative construction thereof.
On the matter of standards of obscenity, the U.S. Supreme Court has now afforded a sensible test and guidelines in Miller v. California,
Sub judice the test set forth in these latest U.S. judicial holdings with respect to "c" ("literary value") as to what now constitutes obscenity was not available on May 5, 1971, as amplification of the notice to appellant of the proscribed conduct; such a modification of the old test in the new holdings cannot now be echoed to the date of the earlier offense.[12] The "old test" (Memoirs v. Mass.,
We hold that the "test" of what constitutes obscenity for purposes of notice of the proscribed conduct, and the test to be utilized at trial, is that which prevailed under the applicable statute as amplified by authoritative construction published at the time of the offense.[13]
NEW TEST PROSPECTIVE ONLY
As to the constitutional sufficiency of § 847.011 per se regarding no specific elaboration on the words obscene, lewd and lascivious, we must take the constitutional view that although there is a new test of obscenity in the aforementioned recent federal opinions, it does not avail us insofar as the sufficiency of the statutory language is concerned for purposes of the earlier offense before us for review. Wе are, of course, also aware that the U.S. Supreme Court saw fit to visit its new test retroactively as a matter of judicial construction upon its own federal statute, 18 U.S.C. § 1462, as to interstate transportation of obscene material and 19 U.S.C. § 1305(a) prohibiting importation thereof, which statutes are in fact in simpler terms than our own Florida statute. These federal statutes simply prohibit that "which is obscene or immoral."[14] Nеvertheless, we do not deem the new U.S. Supreme Court test to be applicable to the earlier offense here on May 5, 1971, as to the change of standards under "c" ("literary value"), because of constitutional ex post facto principles which apply.[15]
The later enlightenment afforded by the new test cannot be visited upon the earlier offense to the extent outlined above, to shore up the rule that the statute must be sufficient to plaсe the average person of common intelligence on notice of the proscribed conduct at the time of the offensive action.[16]
PRIOR FLORIDA "JUDICIAL CONSTRUCTION"
The unavailability of the new test, however, in the prosecution of an earlier offense, does not preclude a conviction, nor the upholding of the validity of our Florida statute. For Miller has said,
"As a result, we now confine the permissible scope of such regulаtion [by the state] to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed." (emphasis added)
*356 By clear and continuing judicial declarations we have for many years past "authoritatively construed" the statutory language of "lewd and lascivious." We have said in plain, understandable language that these statutory words proscribe "an unlawful indulgence in lust; eager for sexual indulgence; open and public indecency" offensive to others. Chesebrough v. State,
SUFFICIENT NOTICE TO OFFENDER
We hold the language of Fla. Stat. § 847.011 F.S.A., as heretofore authoritatively construed to be sufficient to meet the requirements of notice to the person of ordinary understanding, of the conduct proscribed as obscene, lewd and lascivious such as that here involved. Such offender has accordingly had prior notice of our constant, clear judicial determinations with respect to "lewd and lascivious" in the statute.
Former "authoritative constructions" of the statute, announced in prior court decisions, which were of public notice at the time of the offense hеre, apply and were chargeable to appellant at the time of his offense.[17] The record supports the convictions under these prior applicable judicial interpretations.
The courts have made as clear as reasonably necessary, the test of obscenity, if it is applied with common sense in accordance with facts. There will always be those who contend otherwise, whose only object is to continue their assertion of confusion and ambiguity and who are not really looking for a reasonable test or determination of obscenity but only wish to obscure the issue, to continue a state of confusion in which they may profit or pointlessly project their perfidious pursuit of perplexity.
We have dealt with this matter before in Chesebrough, supra, expressly upholding under prior authoritative construction the "lewd and lascivious" terminology of § 800.04 regarding acts in the presence of a minor as not unconstitutionally vague nor void for overbreadth.[18]
In Justice Adkins' opinion in Chesebrough he cites the numerous prior holdings with respect to the sufficiency of the statutory terminology of "lewd and lascivious" and refers to other holdings including the erudite opinion of the eminent Appeals Judge Donald K. Carroll of the First District Court of Appeal in Buchanan v. State,
"It would be, of course, difficult or impossible to detail in a statute book all the acts which would constitute lewd and lascivious behavior, but there is a large body of case law on the meaning of the words `lewd' and `lascivious' (see, for instance, the numerous decisions under these words in Vols. 24 and 25 of Words and Phrases). Generally speaking, however, these words, when used in a statute to define an оffense, usually have the same meaning, that is, an unlawful indulgence in lust, eager for sexual indulgence. See McKinley v. State,33 Okla. Cr. 434 ,244 P. 208 . (emphasis added)
"Our Supreme Court has had occasion to define these two words in their various forms in Luster v. State,23 Fla. 339 ,2 So. 690 ; Pinson v. State,28 Fla. 735 ,9 So. 706 ; Holton v. State,28 Fla. 303 ,9 So. 716 ; Thomas v. State,39 Fla. 437 ,22 So. 725 ; Penton v. State,42 Fla. 560 , *35728 So. 774 ; Whitehead v. State,48 Fla. 64 ,37 So. 302 ; Faulkner v. State,146 Fla. 769 ,1 So.2d 857 ; and Boles v. State,158 Fla. 220 ,27 So.2d 293 ." (p. 57)
Chesebrough then further states:
(255 So.2d 678 )
"Lewdness, or open and public indecency, were offenses even at common law. The statutes throughout our country have given the term `lewdness' a broader sense so that it is no longer necessary that such act be committed in a public place or in the presence of many people. It has been held sufficient if it is an intentional act of lewdness, offensive to one or more persons present. See 30 Am.Jur.2d, Lewdness, Indecency, etc., § 1. It is well settled that a criminal statute is sufficiently certain, though it may use general terms, if the offense is so defined as to convey to a person of ordinary understanding an adequate description of the evil intended to be prohibited. We reject the argument that the statute is void for vagueness and uncertainty." (emphasis added)
Justice Adkins points out in Chesebrough that a fair opportunity is afforded upon motion in the trial court to test the legal sufficiency of the particular acts which must be charged as being lewd and lascivious. Thus the defendant can present his challenge to the sufficiency of his alleged acts as being encompassed within or lying without the statutory verbiage. If the defendant's alleged acts cannot be said reasonably to fall without the words of the statute as a matter of law, then, as in any other casе, upon sufficient facts, a jury will proceed to make the factual determination from all of the evidence in each individual case whether the act or acts alleged (and here whether the films alleged) are in fact lewd and lascivious.
If sexual intercourse between husband and wife in the presence of their child to demonstrate a method of procreation (Chesebrough) is lewd and lascivious, then there can be little doubt that the same and worse sexual conduct depicted upon film between those not husband and wife and in the presence of anyone who wishes to see it is quite obviously lewd and lascivious in violation of the statute § 847.011 and any person of ordinary understanding would know it. We so hold.
We do not need to go further in our consideration of earlier judicial determinations in Florida with respect to publiс notice of the offense proscribed by § 847.011. As a matter of interest, however, our Fourth District appears to have considered other, direct judicial pronouncements which would apply to the statute under the Miller "judicial construction" rule. In its recent Papp v. Florida (Op. filed Aug. 6, 1973),
Our attention has also been invited to the Aug. 7, 1973, order of the highly respected U.S. District Court Chief Judge Winston E. Arnow, Northern District of Florida, Pensacola Div., in Pufahl v. Wilson; Pufahl v. Caldwell; USDC. No. Dist. Fla., Nos. PCA 2623, 2571, and connected cases. Judge Arnow modified his earlier, more restrictive injunction regarding prosecutions on allegedly obscene materials, and, in light of the recent U.S. Supreme Court cases, based his order expressly upon his statement that by those cases "obscenity requirements were substantially chаnged" and that "other existing state statutes as construed heretofore or hereafter, *358 may well be adequate." Miller v. California,
Judge Arnow in Pufahl then proceeds to modify his earlier restraining order against prosecution by saying that "Florida, having heretofore given specific definitions of proscribed sexual conduct through authoritative court construction of its obscenity laws, should be permitted to proceed with criminal prosecution, subject to the requirements of Miller, for violations occurring subsequent to Florida's authoritative constructions of its law." (emphasis added)
In Judge Arnow's opinion are noted the two Florida decisions of Collins v. State Beverage Dept.,
OLD OFFENSE OLD TEST
One area yet remains, however. That is the case which involves an offense antedating any "supplementing" constructions which are now by virtue of Miller to be "read into" the statute as notice to an offender. Such a prior case must still, in our view, be tried under the "old" Roth or Roth-Memoirs test (as the date of offense shall dictate) as the only standard then chargeable to the defendant as to that which he should not violate.
COMMUNITY STANDARDS APPLY
Insofar as community standards vis a vis "national" standards contendеd for by appellant are concerned, this issue has now been settled in favor of contemporary community standards. Miller v. California,
PROMPT DISPOSITION
Finally, the contention that there was not a proper and expeditious determination of the alleged obscenity is refuted by thе fact of the immediate availability of a hearing on the obscenity question before the court which was at all times open for such a hearing. Appellant simply did not avail himself of it, apparently preferring protracted procedures and the incidental benefits flowing from pending litigation and injunctions in the federal courts at the time, which allowed his continued showing of the prohibited films and the resulting mounting рrofits.
We therefore conclude:
1) The obscenity statute § 847.011 is valid and meets constitutional requirements. The challenge (again) of vagueness of the statutory language fails.
2) Authoritative constructions, if published on the date of the offense, apply a) to amplify obscenity statutes for purposes of meeting the new requirement for constitutionality in setting forth specific sexual conduct, and b) to provide the required notice of the prоscribed conduct *359 which "must be specifically defined by the applicable state law, as written or authoritatively construed." Miller.
3) The new U.S. Supreme Court obscenity test applies only prospectively as to (c), the new, modified "value of the work" aspect of the new test, but may apply retroactively, depending upon the date of the offense, as to (b) of the test if the state law, including its authoritativе construction, specifically defines on date of the offense the sexual conduct declared obscene (thus meeting the new standard) and retroactively also as to (a) that "community standards" (already in Fla. statutes) apply.
4) Sub judice, authoritative judicial decisions had been published which placed this defendant on notice of the proscribed conduct[19] and the trial and conviction were pursuаnt to the more severe test then applying, that the material was "utterly without redeeming social value."[20]
5) We expressly adopt, to apply hereafter, the new Miller test of obscenity as set forth in Papp, supra, to-wit: "obscene material" (or conduct) is:
"(a) Patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated.
(or)
"`(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals', where such material, taken as a whole, when viewed by the average person applying contemporary community standards, appeals to the prurient interest and lacks serious literary, artistic, political, or scientific value)."
The "double feature" has ended. The show is over; the verdict is in: Guilty.
We affirm.
CARLTON, C.J., and ROBERTS, ADKINS, BOYD and McCAIN, JJ., concur.
ERVIN, J., concurring in part and dissenting in part with opinion.
ERVIN, Justice (concurring in part and dissenting in part).
I concur in that part of the opinion which applies ex post facto principles to the new obscenity test and must of course recognize prospеctively such new test of the U.S. Supreme Court.
I dissent to the remainder of the opinion, which will be more fully explicated in the case of State v. Aiuppa, Case No. 44,264, pending before this Court.
NOTES
Notes
[1] An additional obscenity statute in 1973, Ch. 73-120, was enacted substantially in accordance with the obscenity statute of the State of Georgia, Ga. § 26-2101, which had been upheld in Gable v. Jenkins, U.S.D.C., N.D.Ga., 1969,
[2] The next sections of the obscenity statutes, §§ 847.012 and 847.013, аs to persons under 17 years of age, give explicit definitions to such words and terms which are used there by the Legislature in the 1969 adoption of those sections.
[3] Fla. Stat. § 847.011(11) (formerly (10)): "For the purposes of this section, the test of whether or not material is obscene is: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."
[4] Roth v. United States,
Memoirs of course came later in 1966 (J. Cleland's Memoirs of a Woman of Pleasure v. Atty. Gen. of Mass.,
[5] May v. Harper,
[6] Miller v. California,
[7] Fla. Const. art. V, § 3(b)(1), F.S.A.
[8] See Fla. Stat. § 933.14, F.S.A. Return of Property Taken Under Search Warrant.
[9] Heller v. New York, decided June 25, 1973,
[10] This Court had previously recognized the "amplification" principle in 1969 in State v. Reese,
[11] "The basic guidelines for the trier of fact must be:
(a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. Kois v. Wisconsin, supra,
[12] United States v. Lang (1973), C.Dist. Calif.,
[13] State v. Reese,
[14] United States v. Orito, 1973,
[15] U.S.Const. 14th amd.; Bouie v. City of Columbia,
[16] Franklin v. State,
[17] Note 13, supra.
[18] We had the subject before us more recently in Witherspoon v. State,
[19] Collins v. State Beverage Dept.,
[20] Roth-Memoirs, supra.