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07/21/88 the People of the State of v. Sequoia Books

July 21, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

SEQUOIA BOOKS, INC., DEFENDANT-APPELLANT

THE PROCEEDINGS LEADING UP TO THIS INJUNCTION ARE MORE FULLY DESCRIBED IN PEOPLE

v.

SEQUOIA BOOKS, INC. (1988), 165 ILL. APP. 3D 143.



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

527 N.E.2d 50, 172 Ill. App. 3d 627, 122 Ill. Dec. 678 1988.IL.1129

Appeal from the Circuit Court of Kendall County; the Hon. Wilson D. Burnell, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and DUNN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This is an appeal from a jury verdict finding defendant in violation of a permanent injunction which enjoined defendant, Sequoia Books, Inc., from, among other things, violating section 11-20 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 11-20). We affirm.

On appeal, defendant contends (1) that the finding of contempt cannot stand due to the fact that the injunction on which it was based was reversed as a prior restraint; (2) that a statement by an expert witness that the two magazines at issue promoted AIDS was reversible error; (3) that it was reversible error for the trial court to sua sponte state that "the corporation is responsible for acts of its agents"; and (4) that the imposition of a $10,000 fine was an abuse of discretion.

On January 21, 1987, an injunction was entered against defendant and Bruce and Cathy Riemenschneider which provided:

"1. That this Court hereby enjoins the defendant, Sequoia Books, Inc., its agents, employees and assigns, from maintaining the public nuisance as described in the findings hereinabove and further expressly enjoins the defendant, Sequoia Books, Inc., its agents, employees and assigns from exhibiting, selling or offering for sale material in the premises described above in violation of Chapter 38, § 11 -- 20 Illinois Revised Statutes.

2. That the defendants, Sequoia Books, Inc., Bruce and Cathy Riemenschneider are restrained from maintaining or permitting such nuisance and from using the building described hereinabove for a period of one (1) year hereafter providing that upon the defendants giving Bond to the Clerk of this Court to be approved by this Court in an amount of $5000.00 payable to the People of the State of Illinois and including a condition that no offense specified in § 37 -- 1 of Chapter 38, Illinois Revised Statutes, shall be committed at, in or upon the property described and that the principal obligor and surety assume responsibility for any fine, costs or damages resulting from such an offense hereafter that then and upon the filing of said Bond the defendants may use the building as described."

Defendant posted the $5,000 bond as required by the January 21, 1987, order. The State later moved to revoke the bond and vacate any stay of enforcement of the trial court's January 21, 1987, order. This court remanded for a factual hearing (which was held in the trial court on April 29, 1987), and on May 4, 1987, Judge Burnell entered an order finding that on March 4 and 5, 1987, Sequoia had sold obscene magazines at the business premises and had therefore violated the conditions of the bond. On May 11, 1987, over the objections of defendant, this court entered an order revoking the appeal bond and dissolving the stay of the injunctive order. On May 29, 1987, the Illinois Supreme Court denied defendant's request for a supervisory order to impose a stay.

On May 26, 1987, a rule to show cause was filed charging defendant and the Riemenschneiders with contempt of court on the basis of the magazines purchased by Robert Wenman.

On June 15 and 16, 1987, a jury trial was held to determine if the injunctive order had been violated. We note here that, although the rule to show cause was filed against both defendant and the Riemenschneiders, it appears from the record that the State only proceeded against defendant at trial and a judgment of contempt was entered only against defendant. At trial, Robert Wenman, Jr., a deputy for the Kendall County sheriff's office, testified that on May 11, 1987, he entered the Denmark Bookstore. He purchased two magazines, Leather Sleaze and Hard Leather.

Deputy Wenman testified as to the magazines he purchased on May 11. He identified the two magazines which were purchased from the bookstore, the magazines were admitted into evidence and shown to the jury over defendant's objection about the constitutionality of the court's underlying injunctive order.

The next witness for the State was Dr. Michael Chiappetta, a registered psychologist and certified social worker practicing in Elgin, Illinois. Dr. Chiappetta testified that he was a treating psychologist. He testified that in his opinion the word prurient meant "that which appeals to the morbid, the disturbed, the sick, the pathological aspects of it." He was asked by the State if he had an opinion based upon a reasonable degree of psychological certainty, as to whether or not a reasonable person would find these magazines have any serious scientific value, and he replied yes. He was asked by the State, over objection, whether the materials had any educational value and he replied, "It would have absolutely no scientific value, and in my clinical opinion, would in fact give harmful educational input." The last question the prosecutor asked was as follows:

"Q. To a reasonable degree of psychological certainty, do you have any other concern about material depicted in those magazines?

A. Yes, I do.

MR. ZOPF: I object. There is no reasonable degree of psychological certainty.

THE COURT: Overruled.

BY MS. FLETCHER: What would that be?

A. That, they, the materials, what's presented here, tends to promote AIDS.

MS. FLETCHER: I have no further questions.

MR. ZOPF: Judge, I'm going to object. I ask to approach the bench.

THE COURT: We better get this in chambers so we can make a record of it."

In chambers a motion for a mistrial was made by defendant because of the immaterial nature of the comment by Dr. Chiappetta, the prejudicial impact on the jury, the speculative nature of the comment and the lack of any medical support for the doctor's opinion that the ...


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