Opinion
No. 73-175
Decided December 5, 1973.
Criminal procedure — Contempt of court — Obscene motion picture film — Theater manager ordered not to conceal or remove — Manager's refusal to produce film — Contemptuous conduct, when — Validity of court's order — Evidence — Hearing.
In an adversary hearing had upon a law enforcement officer's affidavit which explicitly describes scenes in certain motion picture films of acts of sexual intercourse, penetration, oral sodomy, ejaculation, and cunnilingus, for the purpose of establishing the obscenity of such motion picture films, where the evidence in the record discloses that the trial court has issued a prior written order instructing the defendant theater and its management, operators, and employees not to conceal, destroy, tamper with, or alter, or remove said films from the premises, subject to a contempt sanction; that the defendant-manager of the theater saw a copy of the court's written order on the day it was served on his ticket seller; and that he admitted possession of the films on the premises at that time, defendant's subsequent refusal to produce the films, after an oral order of the trial court at the adversary hearing to produce them, constitutes contempt of the court's orders.
APPEAL from the Court of Appeals for Cuyahoga County.
On November 4, 1971, at approximately 11:00 a.m., James G. Kennelly, a detective in the Cleveland Police Department, paid $4.00 admission to view five short motion picture films at the Pussycat Cinex theater, located in the city of Cleveland, Ohio.
Following the viewing of the films entitled "ious Lush," "xie Tricks," "Tit for Tat," "Salesman" and "Bi-Girl," the detective swore to an affidavit explicitly describing scenes therein, of acts of sexual intercourse, penetration, oral sodomy, ejaculation and cunnilingus.
Thereupon, the Prosecuting Attorney for Cuyahoga County moved, in the Court of Common Pleas, for an adversary hearing to determine whether these films were, in fact, obscene. The court granted the motion and issued an order to Pussycat Cinex, informing it of the motion and granting a full opportunity for a complete hearing. The court also stated in its order:
The order of the Court of Common Pleas reads as follows:
"The court upon good cause shown grants the prosecuting attorney's motion for an adversary hearing with respect to the movie films entitled `ious Lush,' `xie Tricks,' `Tit for Tat,' `Salesman' and `Bi-Girl' now being shown at the Pussycat Cinex located at 10606 Euclid Avenue, Cleveland, Ohio, County of Cuyahoga.
"Further, the court grants to the Pussycat Cinex full opportunity for a complete hearing and should Pussycat Cinex desire to produce the said films at the time of the hearing, the court will make a full review of their contents taking into consideration the present laws of obscenity.
"It is further the order of this court that in the event the said Pussycat Cinex does not desire to produce said films at this hearing that the owners, management, operators and employees of this Pussycat Cinex do not conceal, destroy, tamper with, or alter, or remove the said movie films entitled `ious Lush,' `xie Tricks,' `Tit for Tat,' `Salesman' and `Bi-Girl' from the premises of the Pussycat Cinex until further order of this court following the adversary hearing to be held on Friday, November 5, 1971, in the Court of Common Pleas, Criminal Courts Building, 1560 East 21st Street, Cleveland, Ohio at 1:30 PM.
"Any violation of any portion of this court order shall be deemed to be contempt of court and any person who violates this order shall be summarily brought before this court for contempt proceedings."
"* * * that in the event the said Pussycat Cinex does not desire to produce said films at this hearing that the owners, management, operators and employees of this Pussycat Cinex do not conceal, destroy, tamper with, or alter, or remove the said movie films entitled `ious Lush,' `xie Tricks,' `Tit for Tat,' `Salesman' and `Bi-Girl' from the premises of the Pussycat Cinex until further order of the court following the adversary hearing to be held on Friday, November 5, 1971 * * *."
The order also provided that violation of any portion of the court order would be deemed to be contempt of court.
The court order was served at 3:10 p.m. that same afternoon, November 4, 1971, on one Larry Carter, the man assigned to the ticket booth.
The record indicates that, at the adversary hearing held on Friday, November 5, 1971, the appellee-manager, Larry Hardy, testified that he was the manager of the Pussycat Cinex and that he was responsible for the showing of all films on the premises. He testified further that he saw a copy of the court's order on November 4, 1971, and that, at that time, the films in question were in the Pussycat Cinex. Hardy also testified that he was "pretty sure" that the films were being shown at that time.
The court found that there was probable cause that the films in question were obscene and ordered Hardy to produce the films "in court today." Confronted with the court's order, Hardy refused to produce the films, on the ground that disclosure of the films would violate his Fifth Amendment rights against self-incrimination. The court then found Hardy in contempt and ordered him held in the county jail until such time as he produced the films.
"Mr. Willis: I can assure the court that the films will not be available when the police appear, so that — because we feel that the disclosure of these films would violate the Fifth Amendment; so that we may as well take the next step, at least insofar as Mr. Hardy is concerned.
"* * *
"I can represent to the court that the film will not be produced. We are going to fight this on that point.
"The Court: Mr. Hardy, step forward.
"Mr. Hardy, you have heard what your lawyer has to say. Sir, I have heard you say that you are the manager of Pussycat Cinex?
"Mr. Hardy: That's correct.
"The Court: Is this true? and sir, do you have the movies that we have been discussing in your possession?
"Mr. Hardy: No, sir, I don't.
"The Court: Do you know where they are?
"Mr. Hardy: No, sir, I don't.
"The Court: You don't know where they are?
"Mr. Hardy: No.
"The Court: Did you receive a copy of this order yesterday, or did you see a copy?
"Mr. Hardy: I saw a copy.
"The Court: You saw a copy yesterday?
"Mr. Hardy: Yes, sir.
"The Court: Were these films in the Pussycat Cinex then when you saw a copy of this (indicating)?
"Mr. Hardy: I imagine they were, yes, sir.
"The Court: Were they being shown then?
"Mr. Hardy: Yes, sir, they were, I'm pretty sure.
"The Court: All right, sir. I am ordering you to produce those films in court today.
"Mr. Willis: Your Honor, I think we have already said we are not going to produce them.
"The Court: I understand; do you agree with your attorney, you are not going to produce them?
"Mr. Hardy: Most certainly I agree with my counsel.
"The Court: All right; then we are finding you in contempt and order that you be held in county jail until you produce them."
Upon appeal, the Court of Appeals reversed the judgment of the Court of Common Pleas upon the basis that the record was devoid of any evidence that Hardy was able to comply with the oral order issued by the Court of Common Pleas at the adversary hearing; and that the evidence was insufficient to support a finding that Hardy had possession and control of the films at the time of the hearing or that he refused to produce them for the court.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. George J. Sadd, for appellant.
Mr. James R. Willis, for appellee.
The single issue presented by this appeal is whether appellee, Hardy, should have complied with the court's order to produce the films in question.
The cases clearly establish that a corporation cannot claim the privilege against compulsory self-incrimination. United States v. Kordel (1970), 397 U.S. 1.
Similarly, a corporate officer may not withhold testimony or documents on the ground that his corporation would be incriminated, nor may the custodian of corporate books or records withhold them on the ground that he personally might be incriminated by their production. Hale v. Henkle (1906)), 201 U.S. 43; Wilson v. United States (1911), 221 U.S. 361; Essgee Co. v. United States (1923), 262 U.S. 151; Curcio v. United States (1957), 354 U.S. 118. Likewise, in McPhaul v. United States (1960), 364 U.S. 372, rehearing denied, 364 U.S. 925, the Supreme Court of the United States held that books and records kept in a representative rather than a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the records might tend to incriminate their custodian personally.
The court, in McPhaul, also reiterated the rule that a court will not imprison a witness for failure to produce documents which he does not have, unless he is responsible for their unavailability or is impeding justice by not explaining what happened to them. See, also, Jurney v. MacCracken (1935), 294 U.S. 125; United States v. Goldstein (1939), 105 F.2d 150; United States v. Bryan (1950), 339 U.S. 323.
More importantly, in McPhaul, the court held that it was incumbent upon a defendant in a contempt proceeding to show that the records called for by a subpoena did not exist, or that they were not in the defendant's possession or subject to his control at the time their production was requested.
In the case at bar, the Court of Appeals based its judgment upon the ground that Hardy did not have possession of the films in question nor were they subject to his control at the time the trial court orally ordered him to produce them at the adversary hearing. That judgment is erroneous and contrary to the evidence clearly presented in the record.
The Court of Appeals' judgment ignores the trial court's valid order, dated November 4, 1971, which prohibits the Pussycat Cinex, its owners, management, operators and employees from concealing, destroying, tampering with, or altering, or removing the five films in question from the premises of the theater. The record establishes that this order was served upon an employee of the theater on the afternoon of November 4th; that the order was seen by the manager, Hardy; and that the films in question were on the premises of the theater at that time.
At the close of the adversary hearing, on November 5th, Hardy was ordered to produce the films. Considering the oral order of the court at that hearing, together with the court's written order of the preceding day, it is clear that Hardy was responsible for the alleged unavailability of the films, and that he failed to introduce any evidence to the contrary.
It cannot be said that the mode of procedure exercised by the trial court in this case was violative of Hardy's rights under the First Amendment, since the state has a legitimate interest in preserving the films as evidence in a criminal proceeding, even to the point of seizure, pending a prompt adversary hearing on the obscenity issue. Heller v. New York (1973), 413 U.S. 483, 37 L. Ed. 2d 745.
In the present case, the trial court did not interfere with Hardy's First Amendment right to the distribution of the films; it merely exercised its legitimate right to preserve the films as evidence in a subsequent criminal proceeding. Upon the basis of evidence in the record, the judgment of the Court of Appeals is reversed and this cause is remanded to the Court of Common Pleas for execution of sentence.
Judgment reversed.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.