APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
513 N.E.2d 1154, 160 Ill. App. 3d 750, 112 Ill. Dec. 545 1987.IL.1374
Appeal from the Circuit Court of Kendall County; the Hon. Wilson Burnell, Judge, presiding.
JUSTICE HOPF delivered the opinion of the court. DUNN and NASH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF
On January 2, 1986, Harold Andrews, a special agent with the Illinois State Police, entered the Denmark Book Store in Aurora. Andrews browsed in the book store for approximately an hour and then purchased four magazines, Leather Sleaze, Hot Tricks, Instant Porn, and Big Bust Bondage. On January 3, 1986, a four-count criminal complaint was filed, charging defendant, Sequoia Books, Inc., d/b/a Denmark II, with obscenity. Later, at trial, defendant would stipulate that on January 2 defendant did offer the aforementioned magazines for sale and that defendant knew the nature or content of the magazines.
On July 21, 1986, the cause proceeded to trial. During jury selection, the prosecutor asked each prospective juror whether the juror was aware that a law existed in Illinois prohibiting the sale of obscene material and whether the passage of such a law caused the juror personal concern. After the prosecutor had made this inquiry of eight prospective jurors, defendant objected. The objection was overruled.
Also during jury selection, defense counsel asked a juror whether he had any problems with the fact that the legislature had not passed a law indicating that it is illegal to enter an adult bookstore. The State's objection to this inquiry was sustained. Later, out of the presence of the jury, defense counsel asked that, in the interest of fairness, he be allowed to ask his question, since his question was "very much in the same plane as far as probative value" as the State's earlier line of inquiry which the court had permitted. The court denied defense counsel's request.
During trial the State's witness, Mary Jo McMahon, an assistant principal at Oswego High School with a master's degree in art education, opined that none of the four magazines purchased by Andrews had any serious artistic value. Also testifying for the State was Jeanette Page, an English teacher in the Oswego school system with a master of arts degree in English. It was Mrs. Page's opinion that none of the magazines had any serious literary value.
Next, Michael Chiappetta, a psychologist who had substantial experience with individuals having sexual problems, testified that in his opinion the magazines had absolutely no serious scientific value. Chiapetta's opinion was based on the fact that none of the activities in the four magazines depicted a wholesome sexual relationship. In Chiapetta's opinion, the average adult reading the magazines would find the material depicted within them disgusting, and he would see it "as a sick or morbid or disturbing or similar thing."
At the Conclusion of Chiapetta's testimony, the State rested. Defendant moved for a directed verdict, and the motion was denied. Defendant then offered into evidence certified copies of adult use ordinances from eight municipalities across the State. The State immediately objected to their admission, and the court sustained the objection.
Defendant's first witness, Dr. Frank Cushing, a clinical psychologist with considerable experience in human sexual behavior, opined that the magazines in question would not appeal to the prurient interests of the average adult.
Defendant presented another expert witness, Dr. Roderick Bell, a social scientist, who testified regarding a 1985 public opinion telephone poll he had designed and prepared to "throw light" on the question of what are the community standards, i.e., standards of all adults in Illinois, regarding sexually explicit materials. Eight hundred people were surveyed by interviews from a professional field service. The results of the survey showed that 63.5% of the adults surveyed were of the opinion that the standards in Illinois had changed in recent years so that depictions of nudity and sexual activities in movies and publications available only to adults were now "more acceptable." Additionally, 61.6% of those surveyed opined that it was now "all right" in Illinois for bookstores that restricted admittance to adults only to sell publications and movies depicting nudity and actual or pretended sexual activities for adults who want to go inside such establishments and purchase them.
On cross-examination it was brought out that at the Conclusion of each interview it was explained to the individual interviewed that the term "sexual activity," for purposes of the survey, was defined as total male and/or female nudity, actual or pretended sexual intercourse, and all kinds of sexual variations. The participant in the survey was then asked if this definition was what he or she understood the term "sexual activity" to mean. Bell agreed that a person's individual experience would determine what the terms (encompassed within the definition of sexual activity) would mean to that person. Bell opined that 20% to 25% of the adults in Illinois had never been exposed to sexually explicit material and that the magazines in question contained such material.
Defendant's last witness was John Breen, a legal investigator, who had been retained by defendant to visit adult bookstores throughout Illinois for the purpose of determining the availability and acceptability of sexually explicit material at these particular locations. Breen described the exterior and the interior of the bookstores he visited as well as the clientele he observed in the stores. Breen stated that in all the stores there were magazines depicting heterosexual intercourse, anal and oral intercourse, homosexual and lesbian activities, and bondage. In Breen's view, the magazines he purchased in these bookstores were representative ...