People v. Mazzone
| Decision Date | 13 October 1977 |
| Docket Number | No. 76-31,76-31 |
| Citation | 52 Ill.App.3d 859,368 N.E.2d 207,10 Ill.Dec. 721 |
| Parties | , 10 Ill.Dec. 721 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frank MAZZONE, and the Lockport Theatre Corporation, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
L. Robert Artoe, Chicago, for defendants-appellants.
Thomas Cowgill, Edward Petka, State's Atty., Joliet, for plaintiff-appellee.
Defendant Lockport Theatre Corporation, proprietor of Roxy Theatre in Lockport, Illinois, and defendant Frank Mazzone, president of Lockport Theatre Corporation, were found guilty of obscenity, in a jury trial, for violation of par. 11-20 of the Criminal Code (Ill.Rev.Stat.1975, ch. 38, par. 11-20), based on the exhibition at the theater on March 3, 1975 for public patronage, of a motion picture called "Lollipops for Judy." The trial court entered the judgment of guilt on the jury's verdict and assessed a $500 fine against defendant Mazzone and a $1,000 fine against Lockport Theatre Corporation.
During the course of this appeal, defendants filed a motion for summary reversal on the assertion that the Illinois statute upon which they have been convicted is unconstitutional. It was also asserted in such motion that the United States Supreme Court had granted Certiorari in the case of Ward v. Illinois, in an appeal from People v. Ward, 63 Ill.2d 437, 349 N.E.2d 47, and that the issue of unconstitutionality is based upon the contention that the statute involved was vague, indefinite, overbroad, and uncertain on its face and was thereby being tested as to its constitutionality. At the suggestion of the appellants, as well as the State, this Court has awaited a determination of the United States Supreme Court in the Ward v. Illinois case referred to. That case has now been decided and released as a decision of the United States Supreme Court in Wesley Ward v. State of Illinois, U.S. Supreme Court, --- U.S. ----, 97 S.Ct. 2085, 52 L.Ed.2d 738. (We will discuss the Ward v. Illinois case later in this opinion.)
On appeal defendants also argue that (1) the trial court was in error in allowing, over objection of defense counsel, the comment by the prosecutor in closing argument on the effect of the movie "Lollipops for Judy" on a person who has sexual fantasies, sexual hangups, or has been in a psychiatric hospital; (2) that the trial court erred in refusing to admit into evidence other movies adjudged not obscene in Illinois, as evidence of contemporary community standards; (3) that the trial court erred in refusing to allow defense counsel to cross-examine an expert regarding the report of "The President's Commission on Obscenity and Pornography;" (4) that the trial court erred in refusing to admit evidence pertaining to other movies on the same bill of fare as "Lollipops for Judy" to show material "taken as a whole"; (5) that the trial court erred in allowing, over defense counsel's objection and after the close of the case in chief for the defense, the release of the subject film from evidence for a special showing to the State's expert witness; (6) that the trial court committed error in making, in the presence of the jury, a statement that John Wayne has never been in an "adult" film; (7) that the trial court erred in refusing to allow certain defense witnesses to testify regarding the meaning of "prurient interests;" and (8) that the trial court was in error in refusing to give an instruction requiring the jury to return a verdict of not guilty if it found that the subject material was "not utterly without redeeming social value."
The defendants had filed in this Court a motion to strike certain portions of the State's brief, which motion was taken for consideration with the appeal. The contention was that the State had failed to file a designation of additional excerpts of record, and this Court should not consider those matters referred to in the State's brief which are not within defendant's designation of excerpts of record.
Illinois Supreme Court Rule 342(a) (Ill.Rev.Stat.1974, ch. 110A, par. 342(a)) states in part:
"The appellee shall file a designation of any additional excerpts from the record on appeal that he deems essential for the judges of the reviewing court to read, together with proof of service thereof * * * "
In Rule 342(g) of the Supreme Court Rules (Ill.Rev.Stat., ch. 110A, par. 342(g)), it is stated as follows:
In the practice notes to Rule 342 (), it is stated that since the entire record remains available to both Court and counsel (Rule 342(g)), and since it is not necessary to require an additional abstract or excerpts to communicate to the Court differences concerning the contents of the abstract or excerpts, the elimination of that requirement is consistent with the principle that it is not the duty of a successful litigant to correct deficiencies in appellant's abstract or excerpts. The responsibility for that obligation never shifts to the appellee. Since it is clear that this Court has access to the entire record for the purpose of supporting the trial court judgment in this case, we deny the motion to strike heretofore filed herein by the appellant. This principle of supporting the trial court judgment by reference to the record has sometimes been expressed by the statement that the court of review will not search the record to reverse but will search the record to affirm.
It appears from the record that defendant Frank Mazzone is the president of the defendant Lockport Theatre Corporation (hereinafter called "Lockport") which operated the Roxy Theatre in Lockport, Illinois. On March 3, 1975, the Roxy Theatre was exhibiting a so-called "adult" motion picture program consisting of the movies "French Blue" and "Lollipops for Judy," along with a short "adult" cartoon. On that evening, officers of the Lockport Illinois police department, along with an agent of the Federal Bureau of Investigation, executed a search warrant in the theater and confiscated the film "Lollipops for Judy." At that time, the projectionist and the manager, who were present at the theater, were arrested. On April 10, 1975, a Will County grand jury returned an indictment charging the projectionist, the manager, defendant Mazzone and defendant Lockport Theatre Corp. with the offense of obscenity as indicated above.
This case has been tried twice by a jury. When the first jury became deadlocked, a mistrial was declared. The jury for the second trial was selected on October 14, 1975. Prior to the commencement of the second trial, a motion to dismiss the projectionist was allowed by the trial court.
At the trial, the State produced an officer of the Lockport Police Department who testified that he saw the films "Lollipops for Judy" and "French Blue" at the Roxy Theatre. Subsequently, "Lollipops" was shown to the jury in the presence of the trial judge. After the film was shown, a Lockport police officer testified that he had previously viewed the film, and that he had on that occasion counted 18 acts of sexual intercourse depicted on the screen, 25 acts of fellatio, 10 acts of cunnilingus, 1 act of masturbation and 8 demonstrated ejaculations. The officer testified that these acts alone comprised 41 minutes and 18 seconds of the film which lasted for the total of about 1 hour. Several witnesses were presented by the defense, including a movie theater operator, a university student, and president of a film distributing company. Defendant Mazzone was the last witness called by the defense. Mazzone testified that, in all of his movie houses, his policy was to exclude those under 18 years of age and to let the public know that viewers offended by scenes of nudity or sexual intercourse should not patronize his theaters. Mazzone stated that he had not viewed "Lollipops" before it played at the Roxy, but that he had checked to determine whether "Lollipops" had encountered any legal problems and whether it had played elsewhere in Illinois.
In rebuttal, the State called Dr. Meyer Kruglick, a psychiatrist. Kruglick testified that he viewed "Lollipops," and that, in his opinion, the predominant appeal of the film for ordinary adults was to sexual interests and gratification of the viewer. In Kruglick's opinion, the effect of the film on the behavior of the ordinary adult would depend upon the personality structure, stability and security of the individual viewer, but the average adult, after watching the film for a time, "would get kind of bored." When questioned by the State's Attorney as to effects "on any other persons who might view the film other than ordinary adults," Dr. Kruglick responded that an individual who has not achieved a secure sexual identification may, after viewing a film like "Lollipops," make approaches that might be considered obnoxious by the person approached. The witness testified that he saw no scientific or educational value of any kind in the film, and that, in his opinion, "Lollipops for Judy" went substantially beyond customary limits of candor in exhibiting sexual activities.
After presentation of the evidence, instructions on the applicable law, and closing arguments of counsel, the jury returned a verdict finding defendants Mazzone and Lockport guilty of obscenity, and finding the manager of the Roxy Theatre not guilty of obscenity. As we have noted, the trial court entered judgment on the jury's verdict and assessed a fine of $500 as against Mazzone and a fine of $1,000 against Lockport....
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