People v. Mazzone

Mr. JUSTICE STOUDER,

dissenting:

After carefully examining the majority opinion, I respectfully disagree with portions of what my colleagues have said and the result which they reach. The occurrence of what I perceive to be fundamental errors requires me to urge that the case be reversed and remanded for a new trial.

Numerous issues have been raised by the defendant on appeal, each of which has been considered by the majority. Without enumerating the issues in which I agree with the majority opinion, suffice it to say that I am in disagreement only upon those issues which are discussed hereinafter.

As concerns the defendant’s motion to strike portions of the State’s brief, I agree with the majority that we should give effect to Rule 342(g) and consider all of the State’s brief. However, I believe the reasoning of the majority all but eliminates the requirements of filing additional excerpts under Rule 342(a). The availability to this court on appeal of the entire record should not be used to encourage circumvention of an equally important rule requiring additional excerpts. As is aptly stated in the practice notes to Rule 342(g):

“Even though the entire record on appeal is available for perusal by the reviewing court it is impossible in a system where multiple judge panels sit on review of cases to rely on the judges’ access to the record to produce familiarity with the issues raised by the record on appeal. Without accurate and complete excerpts or abstracts, appellate review simply will not work effectively.” (Ill. Ann. Stat., ch. 110A, par. 342, Historical and Practice Notes, at 172 (Smith-Hurd 1976).)

In People v. Collins (1976), 36 Ill. App. 3d 269, 343 N.E.2d 550, the defendant had failed to file an abstract or excerpts as required by Rule 342. While the court did review the merits of defendant’s appeal, it issued a rule to show cause to the attorney in question for the disregard of the Rule. The failure of an appellee to file additional excerpts cannot be placed on the same plane as the failure of an appellant to file excerpts, but some type of sanction should be imposed for the failure of an appellee to file additional excerpts in this cause.

While my colleagues have not expressed an opinion as to the propriety of Dr. Kruglick’s testimony concerning the effect of “Lollipops” on persons other than ordinary adults, I believe that because his testimony is impossible to separate from the objectionable portions of the State’s rebuttal remarks, it is necessary for me to comment upon it. During direct examination of Dr. Kruglick, the following occurred over defendant’s objection:

“STATE’S ATTORNEY: And would there be any other effect on any other person who might view the film, other than ordinary adults?

DR. KRUGLICK: It is conceivable to me and I’ve seen this happen on a few occasions, where an individual who has not achieved a secure sexual identification may gain the idea from viewing the film of this kind that females have a tendency to be aggressive, that they are easily approachable and then may make actually after viewing the film like that, within a matter of time— what I’m trying to say is, he leaves the movie theater and encounters some girl on the street and may, as a result of the stimulus, make approaches that might be considered to be obnoxious by the one whom he approaches.”

The United States Supreme Court in Roth v. United States (1957), 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304, determined that obscenity must be judged by reference to the ordinary adult. In formulating this standard, the Court rejected an earlier leading standard for judging obscenity which had required that the material be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. (Regina v. Hicklin (1868), L.R.3 Q.B. 359.) Section 11 — 20(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11—20(c)) relied upon by defendant is merely a codification of the ordinary adult standard announced in Roth.

The portion of the direct examination quoted above related to “other than ordinary people” and was therefore improper and irrelevant. It was improper because it suggested to the jury that they could properly consider the effect of “Lollipops” on other than ordinary people when determining whether or not the film was obscene, which contravenes the ordinary adult standard set forth in Roth. Furthermore, it was irrelevant because the effect of the film on other than ordinary adults was not probative of any issue in the case, as it is the film’s effect on ordinary adults that is at issue. The error occasioned when the court allowed the quoted question and answer over defendant’s objection was compounded when the State’s Attorney choose to comment and expand on the doctor’s testimony during his rebuttal argument.

The State in its rebuttal argument, as quoted by the majority, referred to individuals who are in need of psychiatric hospitalization or examination, or who have such severe sexual fantasies that they are prompted by seeing a sexually explicit film to commit a sexually aggressive act. These are the particularly susceptible persons the Supreme Court has decreed are not the ones to be considered when determining whether or not material is obscene. Like the testimony of Dr. Kruglick, which I have already discussed and disapproved, the issue concerns ordinary adults and not psychopaths or the mentally disturbed. It is one thing to argue fearless administration of the law for the evil results of crime, as the majority maintains, it is quite another to argue a standard which is inappropriate to gauge whether defendant’s conduct is a violation of law in the first place. It was improper for the State to argue the effect of the film on particularly susceptible persons.

My colleagues have avoided discussing the propriety or impropriety of the State’s rebuttal remarks, choosing instead to focus on the State’s claim that the remarks were an invited response to defendant’s closing argument. I disagree with their conclusion that the rebuttal remarks were an invited response for several reasons.

First, I do not believe that the defendant’s general argument urging the virtues of First Amendment protection called attention to the specific subject matter of the State’s rebuttal and could not therefore invite the response which was given by the State. In a leading case on invited response, People v. Heywood (1926), 321 Ill. 380, 152 N.E. 215, the court held that the State was entitled to respond in rebuttal to a question propounded by the defense counsel in closing argument, even if the response was otherwise improper. The court stated:

“It has been held that it is error to comment upon the fact that the accused has not produced witnesses who are equally accessible to the prosecution [citation], but the situation in that case was materially different from that presented to the court by the objection made in this case. Here the prosecutor was simply replying to a question which had been propounded by the attorney for the accused, and this he had a right to do. The [trial] court properly limited the argument to a reply to the argument of opposing counsel.” 321 Ill. 380, 383, 152 N.E. 215, 216.

In People v. Wheeler (1955), 5 Ill. 2d 474, 126 N.E.2d 228, cited by the majority and which relied on Heywood, defense counsel during closing argument queried the State’s Attorney as to the whereabouts of a witness and implied the State did not call the witness because his testimony would exonerate the defendant. The court held that it was not error for the State to reply to a question propounded by defense counsel so long as the remarks were carefully limited to replying to that question. In People v. Pearson (1972), 52 Ill. 2d 260, 287 N.E.2d 715, the court found that a remark by the State’s Attorney made while successfully objecting to an improper statement by defense counsel during closing argument had been invited by the improper statement.

The link common to these three cases is that a defendant cannot claim prejudice when the State is allowed a limited reply upon the specific subject matter of the defense counsel’s remarks. In two cases, the State was in effect allowed only to answer a question and in the third, the State’s Attorney made an offhand remark while objecting to improper argument. Here, the objectionable argument by the State does not deal with the same specific subject matter of defense counsel’s argument. Nothing in defense counsel’s statement, to which the State is allegedly responding, is even suggestive of Dr. Kruglick’s testimony, psychiatric hospitalization, sexually aggressive acts, or psychiatric examination. Hence, the “response” of the State’s Attorney is outside the scope of the rule established in Heywood, Wheeler and Pearson, and the trial court should have sustained defendant’s repeated objections.

I also question whether it is ever permissible to respond to proper argument with improper argument as was done here. While Heywood and Wheeler do not discuss whether or not defense counsel’s argument was proper, I submit the rule is that it is the impropriety of defense counsel’s remarks which enables the State to respond with further improper argument. In conclusion, I believe the State’s remarks were neither invited nor a response to any arguments of defense counsel, either proper or improper. By permitting the improper remarks over repeated objections of defense counsel, the court placed its stamp of approval on an improper standard.

My next concern relates to the failure of the court to allow defense counsel to cross-examine Dr. Kruglick from “The Final Report of the President’s Commission on Obscenity and Pornography (1970).” In Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, the court rejected the long standing Illinois rule that an expert witness can only be interrogated about those texts upon which he expressly bases his opinion. Instead, the court adopted the more liberal rule which had long been advocated by Wigmore and other authorities. Announcing the new rule the court stated:

“The unsatisfactory quality of expert testimony has been the subject of frequent comment, and it has induced judicial action. [Citations.] An individual becomes an expert by studying and absorbing a body of knowledge. To prevent cross-examination upon the relevant body of knowledge serves only to protect the ignorant or unscrupulous expert witness. In our opinion expert testimony will be a more effective tool in the attainment of justice if cross-examination is permitted as to the views of recognized authorities, expressed in treatises or periodicals written for professional colleagues.” (33 Ill. 2d 326, 335-36, 211 N.E.2d 253, 259.)

While the President’s final report may not constitute a text or learned treatise and hence not come under the literal terms of the Darling rule, it does represent an in-depth study by an impartial, nonpartisan group of eminent scholars.

In Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 356 N.E.2d 779, the court found proper a witness’ reference to clinical studies on oral contraceptives when stating the basis for his expert opinion. The court, relying on Darling, stated that the witness “could have been cross-examined as to * “ * [his medical] opinion in light of the professional literature from which he formed that opinion as well as other relevant medical literature.” 64 Ill. 2d 543, 558, 356 N.E.2d 779, 787.

Clearly, “The final Report of the President’s Commission on Obscenity and Pornography (1970)” is an eminent and recognized work in this field. It has been cited in Supreme Court decisions and is an official government publication. (See, e.g., Kaplan v. California (1973), 413 U.S. 115, 37 L. Ed. 2d 492, 93 S. Ct. 2680; Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 37 L. Ed. 2d 446, 93 S. Ct. 2628.) Hence, the report constitutes a work which comes under the Darling rule as applied in Lawson.

The majority report of the commission concluded there was no evidence that exposure to explicit sexual material played a significant role in the causation of delinquent or criminal behavior among youth or adults (Report of the Commission on Obscenity and Pornography 27 (1970); Paris Adult Theatre v. Slaton (1973), 413 U.S. 49, 108 n. 26, 37 L. Ed. 2d 446, 487 n. 26, 93 S. Ct. 2628, 2660 n. 26), while Dr. Kruglick expressed a contrary opinion. I have previously expressed my views on the impropriety of the State’s inquiries of Dr. Kruglick as to the effect “Lollipops for Judy” would have on a person with sexual fantasies. But whether or not those inquiries were proper, once the witness answered the question and expressed his opinion, the defendant was entitled to cross-examine the witness as to the contrary opinion reached in the final report. Consistent with my views, the witness could have been questioned from the final report on any relevant material contained in the report, either by the defense counsel on cross-examination or the prosecution on rebuttal. The trial court erred when it refused to allow defendant to conduct such a cross examination.

I cannot agree completely with my colleagues as to the trial court’s refusal to allow defense witnesses to answer certain questions. The questions relating to obscenity which were asked of expert witnesses Lamb and Freeberg were improper, but only because the question attempted to elicit irrelevant testimony. The questions called for a personal opinion as to whether the witness believed the movie was obscene. Such an opinion was irrelevant because obscenity must be judged by a reference to community standards and cannot be determined on the basis of personal criteria. However, if the question had been phrased properly, the expert witness would have been able to express an opinion as to the film’s obscenity or non-obscenity as determined from application of relevant community standards. As was aptly stated in Spence v. Commonwealth Edison Co. (1975), 34 Ill. App. 3d 1059, 340 N.E.2d 550:

“The fact that an expert witness, in stating his opinion, will testify to an ultimate issue of the case does not render his testimony inadmissible. In Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 273 N.E.2d 809, the Supreme Court approved the practice of permitting an expert to express his opinion upon ultimate facts of the case, reasoning that since the triers of fact are not required to accept the expert opinion, such evidence does not usurp the province of the jury.” (34 Ill. App. 3d 1059, 1070, 340 N.E.2d 550, 558.)

Here, no contention is made that defendant’s witnesses had not been qualified during trial as experts. Hence, those experts could have expressed an opinion on the issue of obscenity. But see United States v. West Coast News Co. (6th Cir. 1966), 357 F.2d 855.

Consistent with the foregoing, I believe that defendant’s experts should have been allowed to answer questions directed to whether “Lollipops” went beyond what is customary and questions as to what prurient interest meant. While due process does not require the State to introduce the opinions of experts as to whether the film is obscene where the film itself is introduced into evidence and viewed by the jury, either the State or the defendant may introduce opinion evidence (Kaplan v. California (1973), 413 U.S. 115, 37 L. Ed. 2d 492, 93 S. Ct. 2680. See also concurring opinion of Justice Frankfurter in Smith v. California (1959), 361 U.S. 147, 4 L. Ed. 2d 205, 80 S. Ct. 215, as to either social value or community standards). (See United States v. West Coast News Co. (6th Cir. 1966), 357 F.2d 855, and cases cited therein.) Just as a qualified expert in a malpractice case may testify as to whether the actions engaged by the defendant comply with the standards of the medical profession, so to can a qualified expert in the realm of obscenity testify to each of the factors which taken together determine whether or not material is obscene. It is interesting to note the trial judge apparently realized his-error because he allowed two subsequent defense witnesses to answer the same questions he had previously sustained objections to. Defendant should have been permitted to introduce opinion evidence from qualified experts relating to community standards and prurient interests.

My most serious objection to the majority opinion concerns their holding on the failure of the trial court to correctly instruct the jury on the tri-partite test to be used in determining whether material is obscene. The State has conceded error on this point, but argues, as does the majority, that defendant has failed to preserve the issue for review. I cannot agree with such a position. First I believe the defense counsel’s tender of an oral instruction on the “utterly without redeeming social value” standard was sufficient to preserve the issue for review in light of the fact that neither the State nor the trial judge questioned defense counsel’s offering the instruction orally. Any technical deficiency occasioned by tendering an oral instruction in lieu of a written instruction was waived when the State failed to object.

While defense counsel did not specify as error in his post-trial motion the refusal of the court to give the “utterly without redeeming social value” test, I believe the error is of such magnitude as to warrant consideration under the plain error doctrine. In People v. Davis (1966), 74 Ill. App. 2d 450, 221 N.E.2d 63, the court aptly stated:

“Now, we are aware of cases which hold that a ‘trial judge has no duty to give instructions on his own motion where defendant does not request them.’ [Citations.] We believe, however, that the application of this salutary principle must have its limits, and that such boundaries are coextensive with the common-sense administration of the jury system. If no instructions were tendered by either counsel, we think that a trial judge would be abdicating his responsibilities if he were then to permit the jury to retire for its deliberations uninstructed on the law, and free to improvise its own concepts of the crime or crimes charged. As a matter of fact, it should no more be the responsibility of the defense than of the State to tender ‘definition or ‘elements of the crime’ instructions. Such instructions are essential to tell the jury what the case is about, and, in our opinion, are not the kinds which necessarily bear favorably upon some phase or theory of defense ” 0 # and would, in consequence, require the tender of such instructions by the defendant. Which may be another way of saying that we consider this type of instruction so vital to the veriest function of a jury that it must be the court’s responsibility to make sure that such a one is given, directing its preparation, if necessary. The absence of such a fundamental instruction in the instant case produces a situation where the deficiency in the totality of the jury’s instruction is so great as to require a review by this court in the interest of fair trial or the proper administration of justice, even though there was no prior objection or assignment of error.” 74 Ill. App. 2d 450, 453-54, 221 N.E.2d 63, 66. But cf. People v. Truelock (1966), 35 Ill. 2d 189, 192 N.E.2d 187; People v. Tannahill (1976), 38 Ill. App. 3d 767, 348 N.E.2d 847.

The State has the burden of proving the defendant guilty, and such burden must include presentation of evidence and an instruction on each element of the offense. To do otherwise would shift the burden of proof to the defendant.

This court in People v. Thomas (1976), 37 Ill. App. 3d 320, 346 N.E.2d 190, relying on City of Delavan v. Thomas (1975), 31 Ill. App. 3d 630, 334 N.E.2d 190, found that one of the essential elements of the offense charged was “that the material is utterly without redeeming social value.” We concluded the failure to instruct the jury as to that element was reversible error. A similar conclusion here is no less compelling. While the foregoing error alone is sufficient to warrant a new trial, when it is combined with what I perceive to be other errors, a new trial is clearly mandated.