Purohit v. State

BISHOP, Judge. A jury in the Circuit Court for Allegany County convicted appellant, Bijal Kumar Purohit, of possession with the intent to distribute, and distribution of, obscene matter. For purposes of sentencing, the trial court merged the possession with intent charge into the distribution charge, sentenced appellant to sixty days in jail, and imposed a $750 fine. The court. suspended the jail term and placed appellant on eighteen months of unsupervised probation.

Appellant filed a timely notice of appeal to this Court. Issues Appellant raises three issues, which we restate as follows: I. Whether appellant was entitled to introduce, for the purpose of demonstrating contemporary community standards, videotapes of a similar nature that were distributed by local merchants.

II

Whether appellant was entitled to have the jury consider the defense of discriminatory prosecution.

III

Whether the prosecutor’s remarks during closing argument necessitated a mistrial. Discerning no error below, we shall affirm. Facts Pastor D. Joseph Horevay, a representative of Christian Gathering, a Cumberland organization, wrote a letter to Allegany County State’s Attorney Lawrence Kelly, expressing his concern that 104 Video, an adult video store located on Mechanic Street in Cumberland, might be in violation of state obscenity laws. Mr. Kelly met with Pastor Horevay and John Calligan, another representative of Christian Gathering, and agreed to investigate the matter.

Mr. Kelly directed the Cumberland City Police Department (“CCPD”) to purchase a “homosexually oriented pornographic tape” from 104 Video. Officer Philip Houser of the CCPD ⁵⁷⁰ entered 104 Video, where appellant was working, and purchased a male homosexual-oriented, pornographic' videotape entitled “Soap Studs.” After reviewing the videotape, Mr. Kelly filed a criminal information in the circuit court. Prior to trial, appellant served subpoenas upon Mr. Kelly, several CCPD officers (including Officer Houser), Pastor Horevay, Mr. Calligan, and a local newsperson to testify at trial for the defense. Believing that appellant would attempt to raise at trial the defense of discriminatory prosecution, the State filed a motion in limine.

The State argued that, because the defense of discriminatory prosecution “is a defect in the institution of the prosecution,” see Rule 4-252(a)(l), the court should not consider that defense as the appellant failed to file a timely motion to dismiss under Rule 4-252(b). The State also asserted that the issue of discriminatory prosecution is not within the province of the jury, and therefore, appellant should not be allowed to pursue that defense at trial. At the motions hearing, the circuit court ruled that: (1) the defense of discriminatory prosecution is recognized in Maryland; (2) “because the defense ... does not go to the issue of the defendant’s innocence or guilt or [sic] the crime charged the issue ... is not to be tried by the jury but rather to be presented to the Court by means of appropriate pre-trial motion for dismissal ..., or in the proper case by seeking injunctive relief to prevent or restrain the unconstitutional discriminatory enforcement of the law, or by seeking post-conviction habeas corpus relief’; and, (3) the presence of discriminatory prosecution is a “defect in the institution of the prosecution” that must be raised in a pre-trial motion to dismiss. Despite appellant’s failure to file a timely motion to dismiss pursuant to Rule 4-252(b), the Court determined, pursuant to Rule 4-252(a), that good cause existed to entertain appellant’s motion to dismiss based on discriminatory prosecution.

After a hearing at which appellant introduced evidence that other establishments in and around Cumberland distributed videotapes of a similar pornographic nature, but were not singled ⁵⁷¹ out for prosecution, the court denied appellant’s motion to dismiss, ruling that Mr. Kelly’s decision to prosecute appellant was not based on an arbitrary or invidious criteria. During the trial, appellant attempted to introduce six videotapes that were, assertedly, similar in nature to “Soap Studs.” Defense exhibit 1 was a bag containing two videotapes obtained from Potomac Video; defense exhibit 2 was a bag containing two videotapes obtained from Kline’s; and, defense exhibit 3 was a bag containing two videotapes obtained from National Video. The appellant called James William Forbeck as a witness to testify in regard to these tapes. Mr. Forbeck testified that he visited three different establishments in the Cumberland area—Kline’s, Potomac Video, and National Video—and rented two videotapes from each establishment.

Mr. Forbeck acknowledged that he had an opportunity to view videotapes from the “gay section” of 104 Video and saw enough of them to know “what the gay sexual act would be.” Mr. Forbeck further testified that appellant’s counsel instructed him to obtain “similar materials from other establishments in the community.” The following colloquy ensued: Q Now have you had an opportunity to review any of the materials that you have here? A Yes. Q And did any of those materials have a male homosexual theme or conduct on it? A Yes.

Q And do you know where that came from? A I’d have to look at the name of the tape. [DEFENSE COUNSEL]: May I approach the witness to see if he can choose ... BY THE COURT: Well can we agree it came from one of the three, or is it significant which one? [DEFENSE COUNSEL]: I would like to pin it down. Cause if I would go to offer it ... ⁵⁷² BY THE COURT: All right.

Go right ahead, counsel. Q I’ll start off with one ... State’s Exhibit 1 ... and see if you see if that’s what they ... A No. Q And then it’s not the one I just handed you as State’s Exhibit 1 from ... [PROSECUTOR]: Defense Exhibit 1.

Q ... Potomac Video. BY THE COURT: Defendant’s 1. A I think it’s from Kline’s. # * * # # ^ Q Well we’re not going to think.

We’re going to ... A I’m just guessing. Q I’m going to hand you No. 2 which came from Kline’s. A Okay.

Q Defense Exhibit No. 2 for identification. A Yes. Q Is it one or is it two? A One.

Q Did you only pick up one? A Yes. Q Now did you have an occasion to look for or select any females homosexual or gay type? A Yes.

Q Did you have an opportunity to locate any of those? A Yes. [PROSECUTOR]: Objection. BY THE COURT: Yeah, we’re ... Sustained.

Sustained. I think I’ve permitted all I’m permitting on that. [DEFENSE COUNSEL]: Your Honor, at this time I would move to ... (Pause) I would move to admit one tape from Kline’s of the two. I would like to show ...

I’ve shown it to counsel. I’d like to show it to the Court. BY THE COURT: You can show it to whomever you like. ⁵⁷³ [DEFENSE COUNSEL]: This one I would withdraw as being ... BY THE COURT: Okay. [DEFENSE COUNSEL]: So that leaves ...

BY THE COURT: No. So I’m clear. When I say okay. I haven’t ruled on any admissibility. I’m letting you ... [DEFENSE COUNSEL]: I understand that.

I just wanted to check something ... BY THE COURT: Sure. Go right ahead, counsel. [DEFENSE COUNSEL]: ... with regard to names. (Pause) Q I’m going to hand you Defense Exhibit No. 3 and ask you to review the tape upon opening without your ...

You could do it. Open them up and look at the title and see if any of those two were gay males? A No. Q Now hand you back Defense Exhibit No. 2 from Kline’s. And I’ve taken the liberty of putting one [tape] on the outside and one [tape] on the inside.

Would you look at the one on the inside again and see if that may or may not be accurately described as male gay? A No. Q So then that is not ... A No. Q ... gay male? Now the other one in your hand, is that gay male?

A No. I’m sorry. I thought it was. Q Huh? A No. Q So then do you know which one, if any, is ...

A I did not get gay tape. I got the one in gay. I call female gay too. I mean ...

Q So then ... I’d have to ... A Sorry. Q No, that’s okay I want (unclear) That’s all I wanted. ⁵⁷⁴ Appellant’s counsel then offered the three exhibits into evidence: “At this time, Your Honor, I’d have still Exhibits 1, 2, and 3 for the Defense, which we would offer for purposes of comparables with regard to the material and its similarity to the conduct depicted in ... as determined and set out in the statute.” At the time, the court did not rule on the exhibits’ admissibility; after the close of appellant’s case, however, the court ruled as follows: My conclusion is that as to the objection to their introduction I will sustain that objection.

My reason or rationale is this. That to the best of my ability I have attempted to allow the Defendant latitude to generate and develop its [sic] theory of defenses, including the concept that a community standard can in part deal with what is sold at other locations. Over objection of the State, I have permitted that as I in my opinion that latitude should have been granted. However, to introduce these six items seems to me to go beyond that.

First, there is a practical difficulty. While I don’t know I would imagine that six videos, if they’re, anything of the length of what we have already observed, we’re talking minimum of six hours of viewing material. It is simply a practical impossibility, as I would see it, for that to be prescreened and/or viewed by the Jury if ultimately viewed that they should be introduced. It would seem to me it would almost prohibit trials of this case.

I couldn’t see where the end could come. I suppose you could have a hundred of these in that fashion. But perhaps more significantly, it does seem to me that six different films of varieties that I can’t be certain of, none of which apparently deal particularly with the subject matter of this one that’s before the Court, is collateral enough and certainly in my mind raises the possibility of being not only onerous but confusing to the Jury in terms of mere quantity and quality. (Emphasis added).

During closing arguments, the State made the following remarks: ⁵⁷⁵ What else does [appellant] sell in that place? No other types of films. Does he rent them? No, he sells them.

He sells them, and they go out into public. And then what happens to them? Nobody knows. They’re gone.

They’re out there. He’s putting into the public permanently this trash. Once again, don’t look at this ... And please don’t ...

This individual and the State is not interested in being considered prudish or in any way prejudicial or judgmental of a given sexual orientation. That is not what we are here about. What we’re here about is degrading the human spirit. What we’re here about is making people into animals and having candid shots ...

Appellant’s counsel objected and the following was said at a bench conference: [DEFENSE COUNSEL]: Your Honor, I’m going to move for mistrial. I want this jury. I hate to do it. I sat back there and listened to all those comments you [the prosecutor] made, degrading comments.

They were not proper argument to start with. And you bring animals into the case. Highly prejudicial statement. I move for mistrial.

BY THE COURT: Okay---- I’m going to deny the motion for mistrial. The use of animal can go a different ... a couple different ways. What I would suggest, if you want to refer to that, is to make it clear you’re not suggesting this is bestiality or anything. [PROSECUTOR]: No sir. BY THE COURT: Well I ...

But that’ll, you know ... And then ... [DEFENSE COUNSEL]: Or the customers are animals. BY THE COURT: Or the ... Yeah.

Yeah. [PROSECUTOR]: Nor will I refer to that. BY THE COURT: Okay. ⁵⁷⁶ [DEFENSE COUNSEL]: Thank you. Additional facts will be included in the discussion, infra. Discussion I A fundamental element of due process of law is the right of a defendant to present a defense.

See Washington v. Texas, 388 U.S. 14, 19 , 87 S.Ct. 1920, 1923 , 18 L.Ed.2d 1019 (1967). Appellant maintains that he was denied this right. Specifically, appellant contends that the trial court committed reversible error when it sustained the State’s objection to the introduction of defense exhibits one, two, and three. These videotapes, appellant asserts, were probative of the local community’s tolerance for pornography and thus directly relate to the issue of “contemporary community standards.” See Mangum v. Maryland State Bd. of Censors, 273 Md. 176, 185 , 328 A.2d 283 (1974) (determination of obscenity rests, in part, on whether “ ‘the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest’ ”).

The State points out that there is nothing for us to review because appellant did not make a sufficient proffer of the contents of the videotapes. We agree. Although it had to be clear to the trial court the purpose for which appellant offered the videotapes, the contents of those videotapes were not at all clear. Appellant’s counsel merely described the contents as “similar[ ] to the conduct depicted in ... as determined and set out in the statute.” We assume that counsel was referring to Md.Ann.Code art. 27, § 418 (1992), the statute under which appellant was charged.

That section proscribes, inter alia, distribution and possession with intent to distribute “obscene” matter. The term “obscene” is not defined in § 418; rather, that term is defined by case law. Thus, at best, counsel’s proffer indicated that the videotapes contained conduct similar to obscene conduct. Counsel also made reference to the fact that the proffered exhibits were comparable to “Soap Studs.” The testimony of ⁵⁷⁷ Mr. Forbeck, however, makes clear that none of the six videotapes was of a male homosexual theme.

This, of course, directly contradicts counsel’s assertion that they were comparable to “Soap Studs.” Without a proffer of the specific conduct that is portrayed in each of the videotapes, it is not possible for this Court to engage in an analysis of whether the lower court abused its discretion when it refused to admit the evidence. Because appellant failed to make a sufficient proffer, the issue is not preserved for appellate review. See Mack v. State, 300 Md. 583, 603 , 479 A.2d 1344 (1984) (“[T]he question of whether the exclusion of evidence is erroneous and constitutes prejudicial error is not properly preserved for appellate review unless there has been a formal proffer of what the contents and relevance of the excluded [evidence] would have been.”); cf. Avery v. State, 121 Md. 229, 232 , 88 A. 148 (1913) (“There can be no reversal for error without injury, and this Court can not determine whether the appellant was injured by answers to improper questions unless the answers are set out in the record.”). II We next turn to an issue that has not heretofore been addressed by either this Court or the Court of Appeals: whether it is within the province of the jury to consider the issue of discriminatory prosecution.

We shall conclude that it is not. It is well settled that a State’s Attorney’s power to institute a criminal prosecution is replete with broad discretion. See Murphy v. Yates, 276 Md. 475, 495 , 348 A.2d 837 (1975). This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.

Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, ⁵⁷⁸ entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.

Wayte v. United States, 470 U.S. 598, 607-08 , 105 S.Ct. 1524, 1530-31 , 84 L.Ed.2d 547 (1985). Although prosecutorial discretion is broad, it is not unfettered. Id. at 608 , 105 S.Ct. at 1531 . In the often-cited case of Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886), the Supreme Court recognized that, in limited circumstances, a prosecutor’s decision to prosecute can violate the equal protection clause.

Justice Matthews, writing for the Court, explained: Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. Id. at 373-74 , 6 S.Ct. at 1073 . In Oyler v. Boles, 368 U.S. 448, 456 , 82 S.Ct. 501, 506 , 7 L.Ed.2d 446 (1962), however, the Supreme Court stated that “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation”; selective prosecution must be both deliberate and “based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” The allegation of selective or discriminatory prosecution is not new to Maryland courts. Several appellate court decisions address the topic in varying contexts.

See, e.g., Bourexis v. Carroll County Narcotics Task Force, 96 Md.App. 459, 470-71 , 625 A.2d 391 (plea bargaining process), cert. denied, 332 Md. 453 , 632 A.2d 150 (1993); Richardson v. State, 89 Md. ⁵⁷⁹ App. 259, 270-71, 598 A.2d 1 (1991) (decision to seek the death penalty), aff'd, 332 Md. 94 , 630 A.2d 238 (1993); Middleton v. State, 67 Md.App. 159, 169-72 , 506 A.2d 1191 (decision to pursue mandatory sentence for a subsequent offender), cert. denied, 308 Md. 146 , 517 A.2d 771 (1986); In re: Laurence T., 285 Md. 621, 627 , 403 A.2d 1256 (1979) (decision to institute juvenile delinquency proceedings); Giant of Md., Inc. v. State’s Attorney, 267 Md. 501, 517 , 298 A.2d 427 (decision to prosecute for violation of Sunday Blue Laws), appeal dismissed, 412 U.S. 915 , 93 S.Ct. 2733 , 37 L.Ed.2d 141 (1973); cf. Pruitt v. Howard County