People v. Morrison

• Decision Date: 26 October 1987
• Docket Number: Nos. 2-84-0623,2-84-1067,s. 2-84-0623
• Citation: 162 Ill.App.3d 299,515 N.E.2d 356,113 Ill.Dec. 547
• Parties: , 113 Ill.Dec. 547 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles G. MORRISON, Defendant-Appellant. The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard POPE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 356

515 N.E.2d 356

162 Ill.App.3d 299, 113 Ill.Dec. 547

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles G. MORRISON, Defendant-Appellant.

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard POPE, Defendant-Appellant.

Nos. 2-84-0623, 2-84-1067.

Appellate Court of Illinois,

Second District.

Oct. 26, 1987.

J. Steven Beckett (argued), Glenn A. Stanko (argued), Reno, O'Byrne & Kepley, Champaign, Daniel Cain, Sreenan & Cain, Rockford, for Charles G. Morrison.

Paul A. Logli, Daniel D. Doyle, Winnebago County State's Attys. Rockford, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Elgin, John X. Breslin, Deputy Director, State's Atty. Appellate Prosecutor, Ottawa, Terry A. Mertel (argued), State's Attorneys Appellate Service Com'n., Ottawa, for People.

Justice HOPF delivered the opinion of the court:

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, 93 Ill.Dec. 249, 486 N.E.2d 350; People v. Morrison (1985), 138 Ill.App.3d 595, 93 Ill.Dec. 244, 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. 479 U.S. 812, 107 S.Ct. 61, 93 L.Ed.2d 20.

In an opinion filed May 4, 1987, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 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, 39 Ill.Dec. 590, 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. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439, 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. ----, ----, 107 S.Ct. 1918, 1921, 95 L.Ed.2d 439, 445-46.) 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, 65 Ill.Dec. 874, 442 N.E.2d 185.) Here, the United States Supreme Court remanded this cause strictly for determination of whether the erroneous instruction was harmless. Therefore, it is only that specific issue which we may consider upon remand.

Thus, we finally direct our attention to the only issue before this court, i.e., whether the erroneous obscenity instruction was harmless beyond a reasonable doubt. The defendants maintain that the instruction was not harmless error because (1) the United States Supreme Court has refused to find harmless error in cases involving substantive errors in obscenity definitional instructions, (2) Illinois courts have refused to find harmless error where an improper instruction of a fundamental nature is given in an obscenity case, and (3) the record in the case at bar fails to establish that the instructional error was harmless.

Relying on the United States Supreme Court's decisions in Marks v. United States (1977), 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260, and Pinkus v. United States (1978), 436 U.S. 293, 98 S.Ct. 1808, 56 L.Ed.2d 293, the defendants first argue that when the Supreme Court has been required to undertake the harmless error scrutiny in obscenity cases involving instructional errors of a substantive nature, that court has found such errors not harmless. In Marks, the defendants were charged with transporting obscene materials in violation of a Federal statute. Prior to the defendants' trial, the standards articulated in Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, for isolating hardcore pornography from expression protected by the first amendment, were set forth, and these standards were applied to the defendants. As the defendants' violations arose before the Miller decision, the United States Supreme Court held that they were entitled to jury instructions which instructed the jury to apply the less restrictive "utterly without redeeming social value" standard of Memoirs v. Massachusetts (1966), 383 U.S. 413, 419, 86 S.Ct. 975, 978, 16 L.Ed.2d 1, 6, to the materials involved rather than the Miller standards. Based on this error, the Supreme Court reversed defendants' convictions.

In Pinkus, the defendant was convicted of mailing obscene materials and advertising brochures for such materials. Among the instructions given to the jury was one which instructed the jury to include children as part of the community by whose standards obscenity was to be judged. The United States Supreme Court found that there was no evidence that children were intended recipients of the materials in question and, thus, it was error to instruct the jury that children were part of the relevant community. Such an instruction, in the Supreme Court's opinion, may have had the effect of causing the jury to consider a much lower "average" in defining the relevant community by whose standards obscenity was to be adjudged than if the jury had restricted its consideration only to the effect of the materials on adults. (Pinkus v. United States (1978), 436 U.S. 293, 297-98, 98 S.Ct. 1808, 1812, 56 L.Ed.2d 293, 299.) In making its findings, the Supreme Court pointed out that valid arguments could be made that the inclusion of children was harmless error. However, the Supreme Court determined to use the Pinkus case to make it clear that children are not to be included as part of a community for purposes of considering the effect of allegedly obscene materials on adults. 436 U.S. 293, 296-97, 98 S.Ct. 1808, 1812, 56 L.Ed.2d 293.

Unlike Marks and Pinkus, an error of a substantive nature in an obscenity definitional instruction...