Appeal from the Circuit Court of Kendall County; the Hon.
Wilson Burnell, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 19, 1986.
Defendant, Sequoia Books, Inc., was charged in an amended information with 10 counts of obscenity (Ill. Rev. Stat. 1983, ch. 38, par. 11-20(a)(1)) involving the sale of certain magazines seized during a search pursuant to a warrant. Following a mistrial after the jury was unable to reach a verdict, defendant was then tried in a jury trial on only three counts and was found guilty of all three counts of obscenity. Defendant was fined $910.
Defendant raises the following issues on appeal: (1) whether the procedures utilized in obtaining and executing the search warrant were constitutionally sufficient where a large scale seizure was conducted; (2) whether the trial court's non-Illinois Pattern Jury Instruction improperly instructed the jury to determine the community standard on the basis of their own observations in life in Illinois; and (3) whether the Illinois obscenity statute is unconstitutional because it is vague and overbroad and includes material that would appeal to lust alone which would appeal to the normal curiosity of an adult about sexual matters.
On January 23, 1984, Judge Rex Meilinger issued a search warrant for the Denmark Bookstore in Aurora, owned and operated by defendant, to search for evidence of the offense of obscenity in violation of section 11-20 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 11-20) and seize any "[m]agazines containing depictions or portion thereof of the following: Cunnilingus, fellatio, anal intercourse, excretion of semen from penis onto other person, masturbation, vaginal or anal insertion of prosthetic devices, insertion of tongue into anus." (Reprinted in Appendix A.) Attached to the complaint for warrant were two affidavits. Robert Wunsch stated in his affidavit (reprinted in Appendix B) that he had visited defendant's bookstore and purchased two magazines entitled Illegal Entry and Golden Girls, each of which depicted more than one of the sexual acts described in the warrant. He also stated that while at the bookstore, he examined three other magazines, Anal Love, Anal Climax, and Hot Black Boxes, all of which depicted one or more of the acts described in the warrant. Deputy Sheriff Timothy McCann stated in his affidavit that numerous criminal charges have been filed under the obscenity statute "against various persons resulting from the purchase of magazines" at defendant's bookstore. The issuing judge also received the two magazines purchased by Wunsch to examine prior to issuing the warrant.
Armed with the search warrant, Deputy McCann, along with Wunsch and three other officers, entered defendant's bookstore and seized over 375 magazines. Defendant, along with other co-defendants who are not parties to this appeal or the trial below, was charged with obscenity for offering the magazines for sale. (Ill. Rev. Stat. 1983, ch. 38, par. 11-20(a)(1).) Defendant filed a motion to quash the search warrant and suppress the items seized, and to dismiss the complaint challenging the constitutionality of the obscenity statute.
On March 22, 1984, Judge Richard Larson entertained defendant's motions. In addition, the court heard similar motions to quash involving the same defendants and the execution of three different search warrants on three different occasions. Concerning the search of January 23, 1984, Robert Wunsch testified that he was the chief of police for the village of Oswego acting as a "special deputy" for Kendall County on January 23 when he entered the bookstore to purchase some magazines. He paid a 50-cent browsing charge to a man behind the cashier's counter, later identified as Mr. Patroff. (Originally a defendant in this matter, Patroff was eventually convicted for obscenity in relation to another search as reflected in People v. Patroff (1986), 141 Ill. App.3d 483, 490 N.E.2d 148.) Wunsch leafed through a number of magazines and was in the store for approximately 15 to 20 minutes. He stated that he was specifically looking for magazines which contained obscenity, as he defined it: "contained anal intercourse, excretion of semen onto another person, masturbation, insertion of the tongue into the anus." Wunsch also participated in the January 23 search. He estimated that he reviewed 50 or 60 magazines. When asked what he was looking for in the magazines, he responded that he was looking for the specific sexual acts described in the warrant. Among the magazines he personally seized were two more copies of the magazines that he had previously purchased.
Deputy Sheriff McCann testified at the hearing that he participated in three searches of the bookstore pursuant to three warrants on three separate occasions. Specifically concerning the January 23 search, he stated that he gave Judge Meilinger the two magazines Wunsch had purchased at the bookstore. In describing the search procedure, McCann stated that the officers would browse through the magazines searching for depictions of the sex acts described in the warrant, if the cover photograph did not depict such acts, and then would give those containing the depictions to McCann, who marked the magazines and placed them in boxes. Only one copy of each magazine was seized. McCann also stated that there were occasions during the search that he disagreed with another officer's determination that a magazine contained a depiction of a certain act and refused to seize the magazine. A magazine was seized simply on the basis of whether it contained a depiction of a sex act as described in the warrant. Other members of the search team also testified as to the search procedure. After hearing arguments on both motions, the court denied both the motion to quash the search warrant and the motion to dismiss the complaint.
Defendant was originally charged with two counts of obscenity. Later, the charges were increased by an amended information to 48 counts of obscenity pertaining to 24 specifically listed magazines. The State eventually reduced the number of magazines involved as well as the number of counts charged to 10. Defendant proceeded to trial which resulted in a hung jury. Defendant was again tried before a jury. The State, however, chose to proceed on only three counts of the amended information while dismissing the remaining seven. Additionally, prior to proceeding in the second trial, the court accepted the stipulation that defendant owned and operated the bookstore, and on January 23, 1984, offered for sale three magazines, Jammed, Innocent Lesbians and Rough House, knowing the nature of the contents.
The testimony at trial is briefly summarized. Deputy McCann testified that he entered the bookstore on January 23, and identified photographs of the premises, including the sign on the front door which limited admittance to adults over 18 years old. He also identified the three magazines which were admitted into evidence and distributed to the jury for their examination. Michael Chiappetta, a licensed psychologist and social worker, testified on behalf of the State that the three magazines appeal to the prurient interests of the average adult and have no social redeeming value. Roderick Bell, a behavior and social scientist, testified on behalf of defendant that he conducted a public opinion poll concerning Illinois residents' view of sexually explicit magazines and submitted the result into evidence. Dr. Carl Hamann, a physician specializing in psychiatry, testified on behalf of defendant that the magazines would appeal to an average adult's natural curiosity concerning sex. John Breen, an investigator, testified on behalf of defendant that he purchased five magazines containing sexually explicit materials at various establishments around Illinois. The stores all had signs on the front doors limiting admittance to only adults 18 years of age or older.
At the instruction conference, the State tendered a modified version of Illinois Pattern Jury Instruction No. 9.57 (Illinois Pattern Jury Instruction, Criminal, No. 9.57 (2d ed. 1981) (hereinafter cited as IPI Criminal 2d)) while defendant tendered its own modified version of IPI Criminal 2d No. 9.57. Both instructions concerned the definition of obscenity. The trial court agreed with defendant's objection to the State's definitional instruction and accepted defendant's instruction. The court, however, modified defendant's instruction removing the following language:
"In determining whether a magazine is obscene, you must not judge it by your own personal standards, even if you are personally offended by the material."
The court also chose to formulate its own instruction which was submitted to the jury over defendant's objection. The instruction stated:
"In determining whether a magazine is obscene applying contemporary community standards you may consider the material in light of your collective observations in life in the State of Illinois, but you must not judge it by your own personal ...