State v. Pierren

583 P.2d 69, 1978 Utah LEXIS 1368
CourtUtah Supreme Court
DecidedJuly 26, 1978
Docket14912, 15108, 15109 and 15114
StatusPublished
Cited by24 cases

This text of 583 P.2d 69 (State v. Pierren) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pierren, 583 P.2d 69, 1978 Utah LEXIS 1368 (Utah 1978).

Opinions

HALL, Justice:

Defendants appeal conviction of violating U.C.A., 1953, 76-10-1204, -distribution of pornographic material. Pierren was tried on November 11, 1976 (hereinafter “first trial”). Adalid, Haig, and Williams were jointly tried on March 14 and 15, 1977, (hereinafter “second trial”). Eagle Books was tried jointly with each individual defendant. The cases were consolidated for this appeal.

Defendants assert five points on appeal: 1) the statute under which they were convicted is constitutionally defective; 2) closing remarks made by defense counsel in the first trial substantially admitted guilt thereby depriving defendants of effective assistance of counsel; 3) the trial courts erred in failing to define the geographical limitation of “community standards”; 4) the court’s refusal to grant a change of venue in the second trial was an abuse of discretion; 5) the exclusion from the jury of individuals between the ages of 18 to 21 violated defendants’ Sixth Amendment right to a fair trial.

The first point was recently considered in State v. Haig1 wherein this Court upheld the constitutionality of the challenged statute and we now reaffirm that holding.

The second point, in effect, challenges tactics employed by defense counsel in the trial of Pierren. In order to be found pornographic under the Miller standard2 three conditions must be met. The material must be found to be (1) appealing to the prurient interest; (2) depicting sexual conduct in a patently offensive way; and (3) lacking in serious literary, artistic, political, or scientific value. Rather than challenging all three of these criteria, the defense conceded the last two in his closing statement and focused his attention (and the jury’s) on the first criterium. Counsel has substantial latitude in selecting trial strategy. To show inadequate or ineffective counsel, the record must establish that counsel was ignorant of the facts or the [71]*71law, resulting in withdrawal of a crucial defense, reducing the trial to a “farce and a sham.”3 No such showing has been made, hence the claim is without merit.

Defendant’s third claim is that in both trials the court erred in failing to define to the jury the geographical limitations of the phrase “community standards.” Contemporary community standards is defined by statute to mean those current standards in the vicinage where an alleged offense has occurred, is occurring, or will occur.4 In State v. International Amusements;5 this language was construed by this Court to establish a local standard as opposed to a state-wide standard. In that case, we held that “vicinage” is the jurisdictional area from which a jury is drawn. Utah has a unique history in the establishment of its communities. At the direction of their political and ecclesiastical leaders, our fore-bearers settled in various outlying areas of the state and numerous communities were born. Subsequently, the state legislature divided the state into counties according to various considerations. Certainly geography and proximity to governmental administration must have been considered, along with the common interests of the people of the area. The state judicial system has followed these legislative guidelines in calling jurors from the county in which the cause arises.6 There has long existed a basic right to be tried by one’s peers, and no one is better qualified to know what the standards of the community are, than are those peers.

In the second trial, the court explicitly explained what “community” means in providing the jury with the following instructions:

No. 24 ‘Contemporary community standards’ means those current standards in the Weber County area.
No. 32 In this case, you the jury, and you alone are the exclusive judges for expressing the view of the average person and of the common conscience of the community and the embodiment of community standards. You are the exclusive judges of what the contemporary community standard of the intended and probable recipient group is, and in determining the contemporary community standard of said group you may consider the divergent ages, the educated and uneducated, the religious and the irreligious men and women, and, of course, any other characteristics which go to make up the ‘average person: of the intended and probable recipient group.'

We are convinced that such instructions clearly satisfy the standard we adopted in State v. International Amusements, supra.

In the first trial, the court proposed to instruct the jury in accordance with the statutory definition of contemporary community standards, however, the defendants objected thereto on the ground that such was not sufficiently specific. As a consequence, and since the defendants presented no proposed “proper” request as would correct any deficiency in the instructions, the court did not specifically define “community” for the jury.

Generally, for a party to take advantage of the trial court’s failure to give full and correct instructions, he must first propose correct instructions, and should the court fail to give them, to then except thereto.7 The obvious exception to this general rule is when the instructions given are so obviously prejudicial amounting to a denial of due process.8 Such is not the case here, nor is it claimed to be so.

Due to the defendants’ failure to make a written request for the instructions they deemed proper, they are not in a position to [72]*72complain on this appeal. In fact, from the record it appears the court may have been invited to err which activity we do not condone.9

The fourth claim of error is that the trial court abused its discretion in refusing to grant a change of venue in the second trial. The sole statutory ground for removal of a criminal action to another venue is that “a fair and impartial trial cannot be had in the county where the action is pending.” 10 The procedure for a change of venue motion is detailed in U.C.A., 1953, 77-26-2, which permits the application any time before trial. In the case before us trial was scheduled for Monday, March 14, 1977, and on Thursday, March 10 defendants announced themselves ready. On Friday, March 11, the application for change of venue was made. The court denied the motion on the basis of timeliness. Although under the statute, application is permitted any time before trial, the court can properly refuse to grant it in the interest of efficient litigation, if he can see no apparent reason for the change of venue (other than delay) and that it is likely that a jury can be selected without great difficulty. The evidence defendants allege would have been presented in support of the motion was known to defendants long before the application was made. By delaying the application until just before trial, defendants must now be bound by the court’s discretionary11 ruling. The trial court must have considerable latitude of discretion in the expeditious conduct of its business,12 and no showing is made as to any abuse of that discretion.

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State v. Pierren
583 P.2d 69 (Utah Supreme Court, 1978)

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Bluebook (online)
583 P.2d 69, 1978 Utah LEXIS 1368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pierren-utah-1978.