Appeal from the Circuit Court of Winnebago County; the Hon.
Robert J. French, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, Terry Hanserd, was charged in a three-count information with the offense of obscenity (Ill. Rev. Stat. 1983, ch. 38, par. 11-20(a)) for the sale of three magazines: "Sister Suckers," "Nighthawk in Leather," and "Solo Suck Off." Defendant Gregory R. O'Shaughnessy was charged in a three-count information with the offense of obscenity for exhibiting or making available these same magazines. Following a jury trial, defendants were each convicted of three counts of obscenity. Hanserd was sentenced to a term of 120 days in jail and ordered to pay a five of $750 on each of the three charges. O'Shaughnessy was sentenced to a term of 364 days in the county jail and was ordered to pay a fine of $1,000 on each of the three charges.
Four issues are raised by their consolidated appeals: (1) whether the trial court abused its discretion in excluding the testimony of defendants' expert witness; (2) whether Hanserd was denied the effective assistance of counsel; (3) whether the trial court erred in refusing defendants' proposed jury instructions; and (4) whether the convictions violated due process of law and the prohibition against ex post facto laws. Because we conclude the trial court abused its discretion in excluding the testimony of defendants' expert witness, we reverse their convictions and remand for retrial.
• 1 Defendants assert that the trial court erred in excluding the testimony of their only witness, Dr. Eileen Thatcher. The admissibility of expert testimony in obscenity cases is determined by applying rules which govern the admissibility of expert testimony in other cases. (See, e.g., Yudkin v. State (1962), 229 Md. 223, 182 A.2d 798.) Because of the special interests involved in an obscenity case, however, some courts scrutinize more carefully the exclusion of expert testimony proffered by the defense on the obscenity test criteria. (Commonwealth v. United Books, Inc. (1983), 389 Mass. 888, ___, 453 N.E.2d 406, 412.) The trial court should make two preliminary determinations before ruling on the admissibility of expert testimony: (1) will the expert testimony be of assistance to the trier of facts in understanding the evidence or determining a fact in issue, and (2) is the witness properly qualified to give the testimony sought. (Cleary & Graham, Illinois Evidence sec. 702.1 (4th ed. 1984).) The party offering the expert has the burden of establishing the expert's special knowledge. (People v. Free (1983), 94 Ill.2d 378, 410, cert. denied (1983), 464 U.S. 865, 78 L.Ed.2d 175, 104 S.Ct. 514). A determination of the sufficiency of an expert's qualifications rests largely within the sound discretion of the trial court. (Hardware State Bank v. Cotner (1973), 55 Ill.2d 240, 250.) A witness may be qualified by reason of knowledge, skill, experience, training or education, and the degree and manner of knowledge of an alleged expert is directly related to the complexity of the subject matter and the likelihood of error by one who is unfamiliar with that subject matter. People v. Park (1978), 72 Ill.2d 203, 209-10.
In their attempts to qualify Thatcher as an expert, defendants established that she was a Ph.D. in psychology and maintained a private practice in Kankakee, Orland Park, and at two locations in Chicago. She received a bachelor of arts degree from the University of Illinois in anthropology, with minors in psychology and mathematics. She later received a master of arts degree with honors from Roosevelt University and, in 1976, a Ph.D. in psychology from Michigan State University. Her Ph.D. involved five to six years of course work in which she treated patients under supervision. Her major areas of emphasis during her doctoral studies were clinical and personality psychology. She taught a course on human sexuality for three years at Michigan State University to groups of students ranging from 600 to 1,200 and has also taught courses at Roosevelt University and St. Xavier University.
As a prerequisite to her practice in Illinois, Thatcher underwent and passed an examination and was thereafter certified by the Department of Registration and Education of the State of Illinois. In her seven years of private practice, she has treated both homosexual and heterosexual patients and had seen approximately 60 patients within the previous year with sexual dysfunction problems. As part of their treatment, she employed sexually explicit material, including The Joy of Sex and "magazines that you can obtain in an adult book store." She used magazines similar to those involved in the instant case "only heterosexual." Thatcher's patients even brought into her office heterosexual materials as graphic as the instant magazines. Although she has treated homosexual patients, she explained she did not use sexual dysfunction treatment with them because at the time of their treatment, none of her patients had sexual partners.
Thatcher stated her training and experience as a psychologist enabled her to assess the effect the magazines would have upon homosexual, heterosexual and other social groups because "[t]hose are the things that psychologists deal with on a regular basis." She also predicated her ability to determine the impact of the magazines on different groups on her knowledge and experience gained from discussions with her patients concerning their sexual fantasies and practices, from psychology textbooks, and from lectures offered by groups like the Illinois Psychological Association.
On the basis of her testimony, defendants argued Thatcher was qualified as an expert witness regarding the prurient appeal and social value of the magazines. At the trial court's suggestion, defendants then made an offer of proof outside the presence of the jury. Thatcher testified that "Sister Suckers" would not appeal to an average person's prurient interest, but would be stimulating to a heterosexual male. She stated that "Sister Suckers" would not appeal to a lesbian's prurient interest in sex because "[t]hese are sex acts that are normally engaged in by female homosexuals." The magazine could also be instructive for inexperienced lesbians. "Sister Suckers" would not have any effect on a homosexual male or a heterosexual female. "Nighthawk in Leather" would have no effect on a heterosexual male, would have minimal effect on a lesbian or heterosexual female, but would likely excite a homosexual's normal interest as opposed to a prurient interest in sex. "Solo Suck Off" would have no effect on any group because "it was sort of analogous to going to a freak show at the circus."
Her opinion was that both "Sister Suckers" and "Nighthawk in Leather" would have redeeming social value; the former being useful in treatment of sexual dysfunction in lesbians and heterosexual males and the latter useful in the similar treatment of homosexual males. In response to a question from the judge, Thatcher stated the value of the magazines extended not only to the treated person, but also to homosexuals who were not aware of the accepted behavior in their culture.
Although neither party has cited any decision determining the admissibility of expert testimony on the obscenity test elements of prurient interest and social value, such testimony, including that of psychologists and psychiatrists, has been introduced in obscenity trials in this State and in other jurisdictions. See People v. Hart (1981), 101 Ill. App.3d 343, 427 N.E.2d 1352 (defendant introduced expert testimony of psychologist on prurient appeal and social value of film depicting homosexual and heterosexual conduct); People v. Mazzone (1977), 52 Ill. App.3d 859, 368 N.E.2d 207, vacated on other grounds (1978), 74 Ill.2d 44 (testimony from psychiatrist offered by State and from defense witness regarding prurient interest resulting from and social value of film); People v. Tannahill (1976), 38 Ill. App.3d 767, 348 N.E.2d 847 (defendants introduced testimony in trial court of two psychologists on prurient interest and social value criteria); United States v. Petrov (2d Cir. 1984), 747 F.2d 824, cert. denied (1985), 471 U.S. ___, 85 L.Ed.2d 318, 105 S.Ct. 2037 (defendant's expert on sexual dysfunction testified that certain photographs depicting bondage and torture did not appeal to the prurient interest of the average person); Yudkin v. State (1962), 229 Md. 223, 182 A.2d 798 (qualified psychiatrist can testify as to psychological consequences of challenged literature); cf. United States v. Bagnell (11th Cir. 1982), 679 F.2d 826, cert. denied (1983), 460 U.S. 1047, 75 L.Ed.2d 803, 103 S.Ct. 1449 (district court did not abuse its discretion in admitting prosecution expert testimony of homosexual pastor on prurient interest generated by homosexual material); see generally Smith v. California (1959), 361 U.S. 147, 165, 4 L.Ed.2d 205, 218, 80 S.Ct. 215, 225 (Frankfurter, J., concurring) ("community standards or the psychological or physiological consequences of questioned literature can as a matter of fact hardly be established except through experts").
The only obscenity decision in Illinois disclosed by our research in which the court ruled on the admissibility of expert testimony is People v. Mazzone (1977), 52 Ill. App.3d 859, 368 N.E.2d 207, vacated on other grounds (1978), 74 Ill.2d 44, where the third district of our appellate court concluded the trial court did not abuse its discretion in striking several questions asked of two defense witnesses. Both witnesses were asked whether they knew what prurient interest meant and whether the subject film was obscene. Concluding that the questions were properly stricken, the Mazzone court construed the trial court's ruling as predicated on the rule that testimony on ultimate facts is improper. In dissent, Justice Stouder agreed that the questions were properly stricken, but only because they were irrelevant, and not because they were governed by the ultimate fact rule. Noting that the defense witnesses were never challenged as experts, Justice Stouder relied upon Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill.2d 118, 122, for the proposition that an expert is not precluded from testifying on the ultimate issue in the case because the trier of fact is not required to accept the opinion of the expert. (People v. Mazzone (1977), 52 Ill. App.3d 859, 881, 368 N.E.2d 207, 222.) Justice Stouder's view regarding the ultimate fact rule is consistent with the law in Illinois today. (Gordon v. Chicago Transit Authority (1984), 128 Ill. App.3d 493, 504, 470 N.E.2d 1163, 1171; Cleary & Graham, Illinois Evidence sec. 704.1 (4th ed. 1984); compare United States v. West Coast News Co. (6th Cir. 1966), 357 F.2d 855, 859, rev'd on other grounds sub nom. Aday v. United States (1967), 388 U.S. 447, 18 L.Ed.2d 1309, 87 S.Ct. 2095 (defense experts who testified on literary value and social importance of and contemporary community standards regarding book were properly precluded from further testifying on the ultimate issue of whether book was obscene).) Therefore, the Mazzone court's ruling, striking the questions based upon the ultimate fact rule, is of questionable validity.
Irrespective of the merits of the Mazzone court's reliance on the ultimate-fact rule, that decision does not support the trial court's exclusion in the instant case of Thatcher's entire testimony. As noted above, the trial court in Mazzone struck two questions asked of two defense witnesses, but otherwise allowed their testimony. Additionally, as the appellate court in Mazzone acknowledged, the same two questions which were stricken when asked of the two defense witnesses were allowed when later asked of another defense witness and of the State's expert witness. In fact, the State's expert witness was a psychiatrist who, based upon his review of the film in question, testified regarding the predominant appeal of the film, the effect of the film on the behavior of the ordinary adult, the scientific and educational value of the film, and whether the film went substantially beyond the customary limits of candor in exhibiting sexual activities. Interestingly, the opinion in Mazzone contains no indication that the psychiatrist even used explicit films in his practice, much less the type of film that was the subject of the prosecution in Mazzone. Nevertheless, his testimony was admissible. Therefore, rather than reading Mazzone as warranting exclusion of Thatcher's testimony in the case at bar, we find the admission of the psychiatrist's testimony on the elements of prurient interest and social value supportive of our conclusion here that the trial court abused its discretion in excluding her testimony.
Our conclusion is consistent with the language of the Illinois obscenity statute. (Ill. Rev. Stat. 1983, ch. 38, par. 11-20.) Section 11-20(c) states that in a prosecution for an offense under ...