State v. Mayes

Judge BECTON

concurring in part and dissenting in part.

Considering the facts of this case, I concur in the majority’s resolution of defendant’s assignments of error concerning the exclusion of evidence.

Consistent with the views expressed in my dissent in Cinema I Video v. Thornburg, 83 N.C. App. 544, 351 S.E. 2d 305 (1986), I continue to believe that N.C. Gen. Stat. Sec. 14-190.1 is unconstitutional in that (1) it fails to include scienter as an element of the proscribed conduct; (2) it fails to provide for a prompt judicial determination of obscenity; and (3) it is overbroad and proscribes the private dissemination of obscenity in one’s home. However, I am compelled to concur in the result reached by the majority because our Supreme Court affirmed this Court’s decision in Cinema I. Cinema I Video v. Thornburg, 320 N.C. 485, 358 S.E. 2d 383 (1987).

And although the intractable and confusing nature of obscenity case law is seldom more apparent than in the federal decisions elaborating on “contemporary community standards,” I nevertheless concur in the result reached by the majority that N.C. Gen. *583Stat. Sec. 14-190.1 (1986) is not constitutionally infirm because it fails to require jurors to apply statewide community standards in determining whether materials are obscene.1 Statewide standards are not required by the United States Constitution or the North Carolina Constitution.

I disagree with the majority’s resolution of defendant’s assignment of error concerning the jury instructions, and I therefore dissent.

The Trial Court’s Refusal to Define or Elaborate on the Term “Contemporary Community Standard.”

Although the court’s refusal to instruct the jury to apply a statewide standard was not error, the jury instruction was nevertheless improper. The trial judge charged the jury utilizing the language “contemporary community standard” without elaborating on its meaning or giving any direction to the jury to reach a consensus on the relevant community.

The majority begs the question by holding that the trial judge “permitted] jurors to apply the standards of the community from which they come, rather than requiring the application of a uniform statewide standard of obscenity,” ante p. 575. We do not know what standard the jury applied, or if the jury applied any one standard. As defendant argues in his brief, “Each jury member was left to apply not only his or her individual assessment of what the average person might think, but also to determine from where the average person should be drawn. Some may have applied town or neighborhood standards, some countywide or some statewide notions of community acceptance.”2 And this is *584not an abstract or mere academic possibility. The prosecutor argued to the jury as follows:

Ultimately, ladies and gentlemen of the jury, it’s for you to decide the community standard and what the community standards are here in Cleveland County and what you consider to be the community. * * *
Now, when you decide that, ladies and gentlemen, I’ll ask you to think about where you live, whether it’s Kings Mountain, whether it’s Boiling Springs or here in the City of Shelby.
*585You think about your community and think about the entire county and if you live right on a county line, think of your community, whatever you consider your community to be. * * *
You know, the bottom line is it’s your duty —you speak for the community. And the reason that the legislature put the community standard in here is that, you know, it’s just entirely possible that the community in Charlotte or the community in Greensboro or the community in San Francisco or the community in Buffalo may have differing views about just what they will tolerate in these materials —what obscenity really means. And so that’s why the community standard is in there and it is now the —it’s your turn to speak for the community and decide what the average adult in this community will and will not tolerate as to these types of materials.

In contrast, the defense urged the jury that the standard should be a statewide one:

And I don’t mean to be saying by my argument that Cleveland County is the community, because some of you folk live in Kings Mountain, and Kings Mountain, as we all know, is right on the border and a part of Kings Mountain is right over there in Gaston County. So it’s not Cleveland County and it’s not Gaston County. In fact, the problem is, you’ve got to figure out what “community” means. ★ * *
But I’ll say to you, as far as what the average person thinks, it just hasn’t been proved.
We tried to conduct a survey and get it in here to show you about it —what we think the survey would indicate the average person in North Carolina —because it seems to me, folks, that the standard is North Carolina. Because down here at number four, it talks about whether it’s privileged or protected under the North Carolina Constitution, and we can’t have one law in North Carolina for people who live in Kings Mountain and another one for the people who live in Shelby.
*586We’ve got one law for North Carolina, so it seems to me you got to think about North Carolina. * * ⅜
And where is there any evidence about what the contemporary community standard is? In fact, what is it? Ask yourself that. What is the community?
A lot of you good folks probably watch television that emanates out of Charlotte —Channel Nine and Channel Three. Some of you may take the Charlotte paper. A few of you are from Charlotte. Some of you are from Ohio. What does “community” mean? What does it mean to you?

In light of these arguments, a clarifying instruction was particularly important.

To support its conclusion that the trial “judge’s instructions in this case [did not] contravene the Constitution of the United States” by failing to specify what is meant by “community,” ante p. 574, the majority relied on Jenkins v. Georgia, 418 U.S. 153, 157, 41 L.Ed. 2d 642, 648 (1974). In my view, Jenkins should not control the disposition of this case. First, the Jenkins language relied upon by the majority, which effectively gives jurors unbridled discretion to determine the relevant community, seems incongruous with other language in Jenkins that jurors should not have “unbridled discretion in determining what is ‘patently offensive.’ ” Id. at 160, 41 L.Ed. 2d at 650. More important, however, I am loathe to accept as controlling language from Jenkins which is based on a supposition. The Jenkins Court said “[we] also agree with the Supreme Court of Georgia’s implicit approval of the trial court’s instructions directing jurors to apply ‘community standards’ without specifying what ‘community.’ ” Id. at 157, 41 L.Ed. 2d at 648. (Emphasis added.) Additionally, the language on which the majority relies is dicta. The court held that Jenkins’ conviction should be reversed because the film “Carnal Knowledge” did not depict sexual conduct in a patently offensive way.

Moreover, the Jenkins Court’s attempt to interpret Miller v. California, 413 U.S. 15, 37 L.Ed. 2d 419 (1973) was clarified further in Hamling v. United States, 418 U.S. 87, 41 L.Ed. 2d 590 (1974). The Hamling Court stated that “[t]he result of the Miller cases, . . . as a matter of constitutional law . . ., is to permit a juror sit*587ting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion ‘the average person, applying contemporary community standards’ would reach in a given case.” Hamling v. United States, 418 U.S. at 105, 41 L.Ed. 2d at 613 (emphasis added).

In my view, under the majority’s interpretation, which permits a jury to define the relevant community, the statute would be void for vagueness because “people of common intelligence must necessarily guess at its meaning and differ as to its application.” See Treants Enterprises, Inc. v. Onslow County, 83 N.C. App. 345, 350 S.E. 2d 178 (1986), citing State v. Vestal, 281 N.C. 517, 189 S.E. 2d 152 (1972). Neither the prosecutor nor the defense counsel could ascertain from the plain language of the statute what community should be used when determining whether the materials were patently offensive. The average merchant could hardly be expected to do so.

Separate and apart from the constitutional issues in this case, the statute itself supports my belief that defendant’s conviction should not stand when the jurors may have used different standards to judge his conduct. In 1985, the North Carolina Legislature deleted the statewide community standard that had been required since 1971. In doing so, it did not intend that some or all of the twelve jurors in obscenity cases thereafter use a statewide standard. In my view, and consistent with the dictates of Miller and Hamling, the legislature intended that jurors would apply the standards of the community from which the jury pool was drawn. The Hamling Court said:

Since this case was tried in the Southern District of California, and presumably jurors from throughout that judicial district were available to serve on the panel which tried petitioners, it would be the standards of that “community” upon which the jurors would draw.

418 U.S. at 105-06, 41 L.Ed. 2d at 613-14.

In their article, generally upholding the North Carolina Obscenity Statutes, Currin and Showers, while noting that defendants will often attempt to limit or expand the community and that prosecutors will in some cases choose the most morally conservative venue, conclude that “the most prudent instruction *588should adopt local community standards phrased so that ‘the jury is entitled to draw on its own knowledge of the moral views and sense of the average person in the community from which [he] came.’ ” (Footnote omitted.) Currin and Showers, Regulation of Pornography —The North Carolina Approach, 21 Wake Forest Law Review No. 2, 1986, pp. 289, 290. Because no such instruction was given in this case, defendant is entitled, in my view, to a new trial.

. Further, as a practical matter, I am not convinced that the application of a statewide standard would have benefited the defendant, since “in terms of danger to free expression, the potential for suppression seems at least as great in the application of a single [statewide] standard as in allowing distribution in accordance with local tastes . . .” because the use of a statewide standard “necessarily implies that material found tolerable in some places, but not under the [statewide] criteria, will nevertheless be unavailable where they are acceptable.” Miller v. California, 413 U.S. 15, 33, 37 L.Ed. 2d 419, 436 (1973) n.24.

. Defendant made a similar argument at the charge conference as the following exchange shows:

*584MR. SLIWA: Or Kings Mountain —the situation being where you’ve got jurors—Kings Mountain being in two counties, it would mean you could tell them it’s —if you leave “community” undefined or even suggest to them that it’s smaller than North Carolina or includes the county from which they're drawn, they’re going to be asked to disregard the community— the jurors —the community that lives across the street from them because that’s part of their community.
Mr. BROWN: Obviously, when you have a community standard, you’re going to, you know —the same book may generate a conviction in one community and not another. That’s what community standard is. It depends upon how the community—and if that jury views the average adult and whatever they feel their community is.
In Charlotte —most people in Charlotte probably feel their community is just Charlotte. And I’ve learned now that when you come out to these more rural areas, “community” here probably doesn’t mean just Shelby. It may. I don’t know what they take it from. But in the more rural areas, I suspect they’d feel like their community encompasses a bit more of outlying territory, but, you know, since the legislature struck “statewide,” I think they meant for juries to just base it on whatever they feel their community is; and I don’t think it’s for us to define that for them —
The Court: All right.
Mr. Brown: —in any way, shape or form.
The Court: All right, Request Number Twenty-one is Denied.
Mr. SliwA: Is Your Honor going to tell the jurors that it’s up to them to determine what the community is?
Mr. Brown: Just tell them they have to apply their community standard.
Mr. SliwA: Without asking them to define what the community is?
Mr. Brown: Yes.
Mr. SliwA: Specific Exception to that.