People v. Hanserd

483 N.E.2d 1321, 136 Ill. App. 3d 928, 91 Ill. Dec. 686, 1985 Ill. App. LEXIS 2480
CourtAppellate Court of Illinois
DecidedSeptember 26, 1985
Docket84-334, 84-336 cons.
StatusPublished
Cited by4 cases

This text of 483 N.E.2d 1321 (People v. Hanserd) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Hanserd, 483 N.E.2d 1321, 136 Ill. App. 3d 928, 91 Ill. Dec. 686, 1985 Ill. App. LEXIS 2480 (Ill. Ct. App. 1985).

Opinion

JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Terry Hanserd, was charged in a three-count information with the offense of obscenity (Ill. Rev. Stat. 1983, ch. 38, par. 11—20(a)) for the sale of three magazines: “Sister Suckers,” “Nighthawk in Leather,” and “Solo Suck Off.” Defendant Gregory R. O’Shaughnessy was charged in a three-count information with the offense of obscenity for exhibiting or making available these same magazines. Following a jury trial, defendants were each convicted of three counts of obscenity. Hanserd was sentenced to a term of 120 days in jail and ordered to pay a five of $750 on each of the three charges. O’Shaughnessy was sentenced to a term of 364 days in the county jail and was ordered to pay a fine of $1,000 on each of the three charges.

Four issues are raised by their consolidated appeals: (1) whether the trial court abused its discretion in excluding the testimony of defendants’ expert witness; (2) whether Hanserd was denied the effective assistance of counsel; (3) whether the trial court erred in refusing defendants’ proposed jury instructions; and (4) whether the convictions violated due process of law and the prohibition against ex post facto laws. Because we conclude the trial court abused its discretion in excluding the testimony of defendants’ expert witness, we reverse their convictions and remand for retrial.

Defendants assert that the trial court erred in excluding the testimony of their only witness, Dr. Eileen Thatcher. The admissibility of expert testimony in obscenity cases is determined by applying rules which govern the admissibility of expert testimony in other cases. (See, e.g., Yudkin v. State (1962), 229 Md. 223, 182 A.2d 798.) Because of the special interests involved in an obscenity case, however, some courts scrutinize more carefully the exclusion of expert testimony proffered by the defense on the obscenity test criteria. (Commonwealth v. United Books, Inc. (1983), 389 Mass. 888, _, 453 N.E.2d 406, 412.) The trial court should make two preliminary determinations before ruling on the admissibility of expert testimony: (1) will the expert testimony be of assistance to the trier of facts in understanding the evidence or determining a fact in issue, and (2) is the witness properly qualified to give the testimony sought. (Cleary & Graham, Illinois Evidence sec. 702.1 (4th ed. 1984).) The party offering the expert has the burden of establishing the expert’s special knowledge. (People v. Free (1983), 94 Ill. 2d 378, 410, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 514). A determination of the sufficiency of an expert’s qualifications rests largely within the sound discretion of the trial court. (Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 250.) A witness may be qualified by reason of knowledge, skill, experience, training or education, and the degree and manner of knowledge of an alleged expert is directly related to the complexity of the subject matter and the likelihood of error by one who is unfamiliar with that subject matter. People v. Park (1978), 72 Ill. 2d 203, 209-10.

In their attempts to qualify Thatcher as an expert, defendants established that she was a Ph.D. in psychology and maintained a private practice in Kankakee, Orland Park, and at two locations in Chicago. She received a bachelor of arts degree from the University of Illinois in anthropology, with minors in psychology and mathematics. She later received a master of arts degree with honors from Roosevelt University and, in 1976, a Ph.D. in psychology from Michigan State University. Her Ph.D. involved five to six years of course work in which she treated patients under supervision. Her major areas of emphasis during her doctoral studies were clinical and personality psychology. She taught a course on human sexuality for three years at Michigan State University to groups of students ranging from 600 to 1,200 and has also taught courses at Roosevelt University and St. Xavier University.

As a prerequisite to her practice in Illinois, Thatcher underwent and passed an examination and was thereafter certified by the Department of Registration and Education of the State of Illinois. In her seven years of private practice, she has treated both homosexual and heterosexual patients and had seen approximately 60 patients within the previous year with sexual dysfunction problems. As part of their treatment, she employed sexually explicit material, including The Joy of Sex and “magazines that you can obtain in an adult book store.” She used magazines similar to those involved in the instant case “only heterosexual.” Thatcher’s patients even brought into her office heterosexual materials as graphic as the instant magazines. Although she has treated homosexual patients, she explained she did not use sexual dysfunction treatment with them because at the time of their treatment, none of her patients had sexual partners.

Thatcher stated her training and experience as a psychologist enabled her to assess the effect the magazines would have upon homosexual, heterosexual and other social groups because “[tjhose are the things that psychologists deal with on a regular basis.” She also predicated her ability to determine the impact of the magazines on different groups on her knowledge and experience gained from discussions with her patients concerning their sexual fantasies and practices, from psychology textbooks, and from lectures offered by groups like the Illinois Psychological Association.

On the basis of her testimony, defendants argued Thatcher was qualified as an expert witness regarding the prurient appeal and social value of the magazines. At the trial court’s suggestion, defendants then made an offer of proof outside the presence of the jury. Thatcher testified that “Sister Suckers” would not appeal to an average person’s prurient interest, but would be stimulating to a heterosexual male. She stated that “Sister Suckers” would not appeal to a lesbian’s prurient interest in sex because “[tjhese are sex acts that are normally engaged in by female homosexuals.” The magazine could also be instructive for inexperienced lesbians. “Sister Suckers” would not have any effect on a homosexual male or a heterosexual female. “Nighthawk in Leather” would have no effect on a heterosexual male, would have minimal effect on a lesbian or heterosexual female, but would likely excite a homosexual’s normal interest as opposed to a prurient interest in sex. “Solo Suck Off” would have no effect on any group because “it was sort of analogous to going to a freak show at the circus.”

Her opinion was that both “Sister Suckers” and “Nighthawk in Leather” would have redeeming social value; the former being useful in treatment of sexual dysfunction in lesbians and heterosexual males and the latter useful in the similar treatment of homosexual males. In response to a question from the judge, Thatcher stated the value of the magazines extended not only to the treated person, but also to homosexuals who were not aware of the accepted behavior in their culture.

Although neither party has cited any decision determining the admissibility of expert testimony on the obscenity test elements of prurient interest and social value, such testimony, including that of psychologists and psychiatrists, has been introduced in obscenity trials in this State and in other jurisdictions. See People v. Hart (1981), 101 Ill. App.

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Bluebook (online)
483 N.E.2d 1321, 136 Ill. App. 3d 928, 91 Ill. Dec. 686, 1985 Ill. App. LEXIS 2480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hanserd-illappct-1985.