Deverell v. Commonwealth

PER CURIAM.

Mary Margaret Deverell, Gary Bailey, and The Western Corporation were convicted upon a charge of exhibiting an obscene movie, and a judgment was entered levying a fine against each of them.

Upon this appeal there appears to be no merit in any claimed error except the one asserting that the evidence introduced by the Commonwealth was improperly admitted. Upon a trial of the charges, the Commonwealth introduced one witness, Police Officer James Eison, who gave a resume of the contents of a movie, “Temptation and Sin,” while simultaneously exhibiting to the jury a video tape of part of the movie. The video tape was in black and white; the movie was in color. The video tape was without sound; the movie presented a minimum of dialogue and a plenitude of loud music. The tape covered some thirty to thirty-two minutes of the forty- to forty-five-minute movie.

The police officer testified that he attempted to film those portions of each episode depicted in the movie which, in his opinion, were the most important. The officer, in giving his resume of the plot of the movie, expressed the opinion that there was hardly any plot at all. His dialogue covers some several pages of the transcript of evidence. In the course of the showing of the tape, the officer carried on a continuing commentary in which he described what was going on, the type and content of the conversation engaged in by the participants in the particular scenes, and the sound effect being produced by way of music. His testimony is replete with expressed opinions of what the characters in the film intended by their conversation and gestures. He graphically described the sex acts depicted, carefully directing the attention of the jury to certain aspects of the activity. He was thus permitted to express his opinion in regard to scenes depicted.

His testimony was, at the best, nothing other than his version of “Sin and Temptation,” as drawn from his original viewing of the movie and the video tape exhibited. His testimony had the effect of “herding” the jury, whether voluntarily or reluctantly, along the primrose path of “guilty.”

The video tape was made “early in the game” and was exhibited first to a police judge in order to get a search warrant that would permit confiscation of the film. The search warrant is in the record, and the affidavit is so terribly defective that the court quashed the warrant and directed the return of the confiscated film. Therefore, when the case came on for trial, the Commonwealth was severely hampered by its inability to produce the film.

The admission of the police officer’s testimony and the showing of the video tape were over the strenuous objection of the accused. However, the objection to the introduction of the tape concerns itself primarily with the requirement that any determination that the film was obscene must be based upon a consideration of the film “as a whole.” The consequence of this argument would result in a finding that a ten-minute lapse in the film destroys the consideration “as a whole,” as required in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and as re-emphasized in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The phrase “as a whole” does not necessarily create the impression of a requirement that the entire work be viewed frame by frame or page by page. Roth and Miller stand for the proposition that a court cannot lift out of context and use isolated instances of obscenity for the purpose of proving the entire work to be obscene in nature. Miller requires that the court proceed to the point where it can make a proper finding concerning the obscenity of a movie. The court is required to weigh the scenes it finds objectionable in relation to the movie as a whole and determine whether its overall worth more than counterbalances possible obscene or pornographic bits or sequences. A footnote in Cambist Films, Inc. v. Duggan, 298 F.Supp. 1148 (D.C.1969), suggests that the film itself is the best evidence or indispensable evidence on the question of the nature of the film and that, therefore, the film itself should be the only thing admissible.

It would appear that the video tape might well satisfy the requirements of the United States Supreme Court concerning the viewing of a claimed obscene film. However, this court cannot overlook the consequences of permitting a police officer to testify regarding the film in such a manner as to give his view of the impact a film might have upon the public and expressing conclusionary statements on his part regarding the question of obscenity.

The judgment is reversed for further proceedings consistent with this opinion.

REED, C. J., and JONES, LUKOWSKY, PALMORE, STEPHENSON and STERN-BERG, JJ., concur. CLAYTON, J., dissents.