The principal issues raised by the defendants' appeal concern: I. The constitutionality of the obscenity statute under our state constitution (Assignment 1); II. The alleged lack of proof that the defendant Burch, a corporate officer, had knowledge (scienter) of the contents, nature, or character of the obscene films exhibited on premises operated by the corporation (Assignment 4); and III. The denial of the defendant Burch's federal constitutional right to trial by jury through the determination of his guilt by the verdict of a non-unanimous (5-1) verdict of the six-person jury.
The defendants, Wrestle, Inc. and Daniel W. Burch, its president, were jointly charged in two counts with exhibition and display of obscene hard-core sexual conduct. La.R.S. 14:106. The six-person jury unanimously convicted Wrestle, Inc. and, by vote of 5-1, likewise convicted the defendant Burch of both counts.
The defendants are charged with the exhibition and display of two obscene motion pictures. The evidence shows that these films were exhibited in booths (peep shows) at Mid-Town News, premises operated by the corporate defendant. The films were located in small booths in a rear room of the store, in which were situated coin operated projectors. By insertion of a quarter, these permitted viewing through its projection a portion of the film onto a small viewing screen.
By their motion to quash the informations, the defendants charge that La.R.S. 14:106 is unconstitutional as vague, arbitrary, and overbroad.
The defendants suggest that the following phrases of the definition are sufficiently indefinite as to render the statute unconstitutional: "Contemporary community standards," "prurient interest," and "patently offensive." They argue that, to give the jury such a set of variables but without providing adequate objective criteria for determining the content of the variables, simply passes on to the jury what should be a legislative function.
In short, the defendants rely upon jurisprudential expressions that, under our state constitution, a person cannot be subject to criminal prosecution for any act unless that act has first been denounced with sufficient legislative precision that the person sought to be held accountable will know that his conduct falls within the prohibition of the statute.
The legislation defines hard-core sexual conduct, an essential element of the crime, in concrete and specific terms. La.R.S. 14:106(A), quoted in footnote 4 above. By this definition, the potential offender is informed with specificity of the type of conduct which subjects him to criminal penalty.
Additionally, however, the trier of fact is obliged to determine whether such explicitly defined sexual portrayal is depicted "in a patently offensive manner" and that the average person "applying contemporary community standards" would find that the work as a whole "appeals to the prurient interest."
The Louisiana obscenity statute, in the portions quoted in this opinion (see footnotes 3, 4), clearly complies with the federal constitutional requirements of regulating only specifically defined sexual conduct, limited to works which, taken as whole, appeal to the prurient interest in sex, which portray this conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973). (Likewise, our statutory guidelines for the trier of fact comply with the federal constitutional standard for factual determination of obscenity, including by the use of contemporary community standards. Id.)
As Miller notes, compliance of a state statute with these constitutional prerequisites "will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution." 413 U.S. 28, 93 S.Ct. 2616-17. We are satisfied that such notice not only satisfies federal due process and First Amendment requirements but also similar notice requirements of our state constitution.
We therefore reject the defendant's contention that the statute does not adequately inform the accused of the conduct proscribed by it.
The defendant further contends that the community standard for determination of obscenity leaves protection of constitutional freedom of expression to the whim of each jury. In this regard, Miller states: "If a state law that regulates obscene material is thus limited . . . [as is Louisiana's], the First Amendment values . . . are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary." 413 U.S. 25, 93 S.Ct. 2615.
We have recognized our duty to conduct an independent constitutional review in the appellate court of constitutional claims. State v. Amato, 343 So.2d 698, 703-04 (La.1977). As we stated in State v. Luck, 353 So.2d 225, 230 (La.1977): "* * * the trial court's determination that material is or is not obscene presents an issue of law fully reviewable by this court. Even the factual determination of obscenity by a trial jury must be subject to full appellate review to meet constitutional standards designed to effectuate freedom of expression. Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974."
The trial court properly overruled the defendants' motion to quash the indictment.
In his motion for a new trial, the defendant Burch contended, inter alia, that there was no evidence that he had knowledge of the contents, character, or nature of the obscene films exhibited by the corporation
Determination of guilt of obscenity constitutionally requires proof of scienter or knowledge. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). As the decision indicates, this proof may be circumstantial. The state need not, however, show the defendant knew the legal status of the materials to be obscene; it is sufficient that, under the statute, the state be required to show that the accused had knowledge of or had reason to know of the character and nature of the contents of the materials for distribution or exhibition of which he was responsible. Hamling v. United States, 418 U.S. 87, 119-25, 94 S.Ct. 2887, 2908-11 (1974); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); Schauer, The Law of Obscenity 222-26 (1976).
The trial judge therefore instructed the jury that the evidence must show beyond a reasonable doubt "that the defendants had knowledge of the character and content of the motion picture at the time that the defendants possessed, exhibited, and displayed the material." The trial judge further instructed the jury: "* * * when you are considering whether the defendant had guilty knowledge, you are to consider whether he personally knew, not whether some person allegedly acting for him knew about it, nor whether some associate knew about it. In this kind of case, whatever may be the rules of agency in civil matters, individuals are to be charged on the basis of the personalized individual knowledge only."
Thus instructed, the jury found (5-1) the defendant Burch guilty of both counts.
The evidence shows: The defendant Burch was the president of the corporation which operated the store. It was a local corporation, and Burch lived in the locality. In the back of the store was a small room with twelve coin-operated viewing machines.
Burch was seen in the store by a police officer on at least one of his visits to it. A defense witness saw Burch on the premises some six months before, building the booths for the peep shows in which the obscene films were exhibited. The films last from eight to ten minutes, and quarters must be inserted periodically, costing from three to four dollars to see a film in its entirety.
As summarized in State v. Lindinger, 357 So.2d 500 (La.1978): Sufficiency of the evidence is a factual matter not reviewable on appeal. The reviewing court may reverse only if there is no evidence to prove the crime or an element of it. In determining whether the circumstantial evidence constitutes some evidence of the crime, the reviewing court must determine whether there is some evidence from which, if accepted by the jury, it could reasonably conclude beyond a reasonable doubt that it excluded every other reasonable hypothesis, as required by La.R.S. 15:438, than the essential element sought to be proved (here, that the accused Burch knew or had reason to know of the nature and character of the films exhibited by his corporation). See also State v. Schwander, 345 So.2d 1173 (La.1977).
Assayed by this test, some evidence was introduced by which the jury could reasonably conclude beyond a reasonable doubt that the resident president of this local corporation (who had actually participated in building the booths apparently intended for the sole purpose of exhibiting pornographic films) had knowledge or reason to know of the nature and character of the films exhibited therein. Although the issue is close, we are unable to hold that this assignment presents reversible merit.
III. Non-unanimous Six-person Jury
By brief and argument in this court, the defendants for the first time contend that Louisiana law, which permits conviction by a non-unanimous six-person jury, offends the right of persons criminally accused of non-petty offenses to the jury trial guaranteed them by the Sixth and Fourteenth
The defendants base their contention upon Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978). This decision held that trial before a five-person jury offends federal constitutional rights, even though a unanimous verdict is required.
Initially, we are given concern because the alleged error was not raised by objection in the trial court at the time of the jury trial, La.C.Cr.P. art. 841, nor assigned as error, La.C.Cr.P. art. 920. It thus cannot be the subject of appellate review unless the error "is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La.C.Cr.P. art. 920(2).
Historically, our jurisprudence does not permit inspection of the trial transcript to ascertain such errors, see State v. Craddock, 307 So.2d 342 (La.1975), but only of the pleadings and proceedings alone considered part of the record for purposes of patent-error appellate review—in general, the indictment or information, the minutes, and the verdict and sentence.
In this case, the minute entry shows that, after the jury brought in verdicts convicting both defendants of both counts, the jury was polled and had found the defendant Burch guilty by a vote of 5-1. Although the matter is not free from doubt
We therefore consider on its merits the contention of the unconstitutionality of a non-unanimous verdict by a six-person jury.
The question of unanimity of a jury verdict was raised in Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972). The court there held that Louisiana's twelve-person jury, wherein nine persons (before the 1974 state constitution raised the requirement to ten) must concur to reach a verdict in order to subject a defendant to punishment necessarily at hard labor, did not violate the defendant's right to due process or equal protection.
The 1974 Louisiana constitution provides for a jury of six for lesser felonies, five of whom must concur to render a verdict. Article 1, Section 17. This changed the prior state constitution's provision for a jury of five in such instances, with a requirement of a unanimous verdict (similar to the Georgia jury provision invalidated earlier this year by the United States Supreme Court in Ballew).
In his commentary upon the 1974 provision, Professor Lee Hargrave, Coordinator of Research for the constitutional convention, expressed the view that this change to non-unanimity did not offend the federal constitution: "If 75 percent concurrence (9/12) was enough for a verdict as determined in Johnson v. Louisiana, 406 U.S. 356, [92 S.Ct. 1620, 32 L.Ed.2d 152] (1972), then requiring 83 percent concurrence (5/6) ought to be within the permissible limits of Johnson." Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 56 (fn. 300) (1974).
We accept this view as still valid, despite the recent decision in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978). Ballew rejected Georgia's contention that the retention of the unanimity requirement in its five-person jury satisfied the requirements of the federal constitution's guarantee of the right to trial by jury for a criminally accused through the Sixth and Fourteenth Amendments.
In doing so, the court stated: "Our concern has to do with the ability of the smaller group to perform the functions mandated by the Amendments. That a five-person jury may return a unanimous decision does not speak to the questions whether the group engaged in meaningful deliberation, could remember all the important facts and arguments, and truly represented the common sense of the entire community." 98 S.Ct. at 1039-40.
Earlier, in Williams, the court had held that a six -person jury was of sufficient size to promote adequate group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community. These values, which Ballew held a five-person jury is inadequate to serve, are not necessarily defeated because the six-person jury's verdict may be rendered by five instead of by six persons.
The six-person jury will still presumably engage in the longer deliberations involving more communication that the court found adequately enhances greater verdict reliability and better community representation, despite (see Johnson) the elimination of the requirement for unanimity in verdict. Or at least this court, indulging in the presumption of federal constitutionality which must be afforded to provisions of our state constitution, so concludes as to this close issue.
We therefore do not find reversible merit to this contention.
The remaining assignments of error do not require extended discussion:
Assignment 2 concerns a non-errorneous refusal of the trial court, within its discretion, to qualify a witness as an expert entitled to give opinions as to contemporary community standards. The witness's opinion was founded mostly on his discussions with acquaintances involved in the marketing and sale of materials in adult book stores and with their customers. The witness was, however, permitted to testify fully as to the wide availability of similar materials in 25 outer outlets in the community, a matter concerning facts within his knowledge. La.R.S. 15:463, 467
Assignment 3 concerns a non-meritorious technical and narrow objection to the trial court's instructions relative to the definition of "prurient interest".
Assignment 4 objects to the sentencing of both defendants to two consecutive sentences on both counts of the two count information. The information concerned two separate offenses (showing of two different obscene films); joinder of the separate offenses is permissible under La.C. Cr.P. art. 493 as amended in 1975. The jurisprudence concerning the issue prior to the 1975 amendment is inapplicable. See, e. g., State v. Todd, 278 So.2d 36 (La.1973).
Accordingly, since we find no merit to the defendant's contentions, we affirm the convictions and sentences.
"* * * Hard core sexual conduct is the public portrayal, for its own sake, and for ensuing commercial gain of: