Appeal from the Circuit Court of Kendall County; the Hon.
Wilson D. Burnell, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, Sequoia Books, Inc., appeals from the judgment of the circuit court of Kendall County entered on a jury verdict finding it guilty of obscenity. (Ill. Rev. Stat. 1983, ch. 38, par. 11-20(a)(1).) It appeals, raising five issues which we find have been addressed and decided in several recent opinions of this court.
On October 23 and 24, 1984, Ronald Henson, an Oswego village police officer, went to the Denmark Bookstore at 1300 Business 30, Aurora, Kendall County, Illinois. He purchased two magazines entitled "Here's the Beef" and "Student Bodies" on October 23, and one on October 24 entitled, "Two-Way Swingers."
On October 25, 1984, Henson executed a complaint and affidavit for a search warrant. The court additionally received the three magazines that Henson had purchased, and it reviewed them. The court then issued a search warrant, commanding the search of the Denmark Bookstore and the seizure of:
"Magazines containing depictions or portion thereof of the following: Cunnilingus, fellatio, anal intercourse, excretion of semen from penis onto other persons, vaginal or anal insertion of prosthethic [sic] devices, insertion of tongue into anus and anilingus."
The warrant was executed on October 26, 1984, by Kendall County State's Attorney investigators, supervised by Joel Widell. For approximately 1 1/2 hours, those investigators reviewed the several hundred magazines on bookracks located around the sales area of the store to determine if either on the cover or inside of a magazine there was at least one photographic depiction of a sexual act which met the criteria set forth in the search warrant. The officers took only one copy of any single magazine; a total of 139 separate magazines were seized out of approximately 150 magazines reviewed. An amended single-count complaint was filed charging the defendant with obscenity with respect to the 139 magazines.
Sequoia's motion to dismiss was denied, as was its motion to quash the search warrant and suppress items seized after an evidentiary hearing and argument.
At trial, Kendall County State's Attorney investigator Joel Widell was the State's only witness in its case in chief. He described the bookstore premises and identified photographs taken on October 25, 1984. He identified the 139 magazines taken from the bookstore on that date, they were admitted in evidence and shown to the jury. Before it rested, the State presented a stipulation of the parties that Sequoia Books, Inc., owned and operated the Denmark Bookstore and offered the 139 magazines on trial for sale on October 25, 1984, knowing the nature or content of the magazines. The defendant's motion for a directed verdict at the close the State's case in chief was denied.
The first defense witness was Roderick Bell, a social scientist specializing in public opinion polls. He testified concerning a poll conducted in 1983 which was designed to report the attitude of adults living within the State of Illinois concerning the dissemination of sexually explicit materials. Dr. Bell gave the foundation and background for the conducting of such a survey, including his assessment that the survey was a valid measure of community attitudes, and read to the jury the results of the poll, which included a percentage breakdown of adult responses.
The next witness for the defendant was Kevin Kropp, a student at the University of Illinois, who testified that he went to various adult bookstores and communities throughout the State of Illinois. He identified photographs of each of the bookstore locations, as well as magazines that he had purchased there which were comparable to the level of sexual explicitness of the magazines on trial.
The final witness for the defendant was Dr. Carl Hamann, a psychiatrist from Rockford, Illinois. He testified he examined all of the materials on trial and, in his opinion, those materials, taken as a whole, did not appeal to the prurient interest of the average adult. It was also his opinion that the magazines could be used for the treatment of sexual degeneracy, as teaching instruments in medical schools, and that they otherwise would have informative value about sex. His opinion was based upon the President's Commission Report on Obscenity and Pornography, available medical literature through 1985, and his background and experience.
The defendant made an offer of proof, seeking admission of adult use ordinances from various Illinois communities (Springfield, Quincy, Danville, Peoria, Urbana, and Chicago). It was asserted that such ordinances were relevant to showing the degree of public acceptance of sexually explicit material in the State of Illinois. The State's objection on the basis of relevancy was sustained, and admission of the evidence was refused.
In rebuttal, the State called a clinical psychologist, Dr. Michael Chiappetta. He testified that in his opinion the magazines appealed to the prurient interest and were utterly without redeeming social value. He further testified that the magazines could be harmful to some adults, and that the President's Commission Report had been rejected by Congress.
The trial court conducted an independent judicial review of the 139 magazines, and it determined that all of them should be submitted to the jury for deliberation and decision. The defendant's motion for ...