APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
515 N.E.2d 356, 162 Ill. App. 3d 299, 113 Ill. Dec. 547 1987.IL.1588
Appeal from the Circuit Court of Winnebago County; the Hon. Robert J. French, Judge, presiding.
JUSTICE HOPF delivered the opinion of the court. INGLIS and UNVERZAGT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF
The defendants, Richard Pope and Charles Morrison, attendants at adult bookstores, were each separately charged and found guilty by a jury of the crime of obscenity on three counts. Each count alleged the sale of an obscene magazine. Both defendants filed timely post-trial motions, renewing a constitutional issue asserted in their pretrial motions to dismiss, which had previously been denied. That issue centered on the defendants' claim that the Illinois obscenity statute in existence at the time they were charged and tried was unconstitutional in failing to require that the value element of the tripartite test for obscenity be adJudged solely on an objective basis and not by reference to contemporary community standards. The post-trial motions were denied.
Each defendant filed a timely notice of appeal. This court affirmed both convictions, rejecting defendants' contention that the value issue must be determined solely on an objective basis and not by reference to contemporary community standards. (People v. Pope (1985), 138 Ill. App. 3d 726, 486 N.E.2d 350; People v. Morrison (1985), 138 Ill. App. 3d 595, 486 N.E.2d 345.) Subsequently, this court denied a rehearing in both cases. Defendants then sought leave to appeal in the Illinois Supreme Court, and that court denied review. Defendants sought certiorari in the United States Supreme Court, and on October 6, 1986, certiorari was granted.
In an opinion filed May 4, 1987, the United States Supreme Court held that an instruction given at each defendant's trial, which directed the jury to apply contemporary community standards in deciding the value question, violated the defendants' first and fourteenth amendment rights. The Supreme Court vacated the judgments of this court and remanded the cases for consideration of whether the constitutional violation constituted harmless error.
On remand, defendants argue that the harmless error issue cannot be reached unless this court reconstrues the former Illinois obscenity statute and that the constitutionally infirm instruction, which allowed the jury to make its value determination based upon contemporary community standards, was not harmless beyond a reasonable doubt.
We note at the outset that the State argues that defendant Richard Pope has waived consideration of whether the obscenity instruction was harmless error. The State maintains that Pope has waived the issue not only because he tendered the erroneous instruction but also because he failed to raise any issue concerning the instruction in his post-trial motion or on direct appeal to this court. Thus, the State asserts, as defendant has waived this issue at every step of the proceedings, an independent State ground exists to affirm Pope's conviction.
Supreme Court Rule 451(c) permits the review of "substantial defects" in instructions if the "interests of Justice require." (107 Ill. 2d R. 451(c).) The error in the instruction must be so plain, substantial or grave as to warrant our taking notice of it. (People v. Jones (1979), 81 Ill. 2d 1, 7, 405 N.E.2d 343.) In the case at bar, the United States Supreme Court found that it was error to instruct the jury to use a State community standard in considering the "utterly without redeeming social value" question. The court remanded the cause for our consideration and ordered this court to determine whether the error in question was harmless. Clearly, this mandate illustrates that the error was so grave as to require our review of it under Supreme Court Rule 451(c), and this determination obviates the need to consider any of the waiver arguments the State raises against defendant Pope.
Instead, we address the defendants' contention that the harmless error issue cannot be reached unless the court reconstrues the former Illinois obscenity statute. (Ill. Rev. Stat. 1983, ch. 38, par. 11-20.) The defendants assert that in Pope v. Illinois (1987), 481 U.S. , 95 L. Ed. 2d 439, 107 S. Ct. 1918, the United States Supreme Court recognized that the former Illinois obscenity statute was unconstitutional and that unless this court reconstrues the statute to be constitutional, the erroneous instruction could not be harmless error. We are not in agreement with the defendants' interpretation of the Supreme Court's decision. The Supreme Court did not find the obscenity statute to be unconstitutional. (See 481 U.S. , , 95 L. Ed. 2d 439, 445-46, 107 S. Ct. 1918, 1921.) Rather, it found a jury instruction which directed the jury to apply a contemporary community standard in adjudging whether the materials in question were "utterly without redeeming social value" to be unconstitutional. The statute in force at the time did not require the social value of allegedly obscene material to be adJudged on community standards. Only the jury instruction sets forth this requirement, and, therefore, the Supreme Court found just the erroneous instruction to be unconstitutional.
Moreover, defendants' request that this court reconstrue the former obscenity statute is beyond the scope of the Supreme Court's mandate. When the directions of a reviewing court are specific, a positive duty devolves upon the court to which the cause is remanded to act in accordance with the directions contained in the mandate. (People ex rel. Daley v. Schreier (1982), 92 Ill. 2d 271, 276, 442 N.E.2d 185.) Here, the United States Supreme Court remanded this cause strictly for determination ...