Before they left to go swimming defendant put suntan lotion on the girls. They subsequently went to an indoor pool at the Ramada Inn in Carbondale. The victim was not dressed when defendant applied the suntan lotion.
APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
527 N.E.2d 1367, 174 Ill. App. 3d 1, 123 Ill. Dec. 592 1988.IL.1293
Appeal from the Circuit Court of Jackson County; the Hon. Richard E. Richman, Judge, presiding.
JUSTICE LEWIS delivered the opinion of the court. HARRISON, P.J., and CALVO, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS
In a two-count indictment filed in the circuit court of Jackson County on April 2, 1985, defendant, Robert Hebel, was charged with aggravated criminal sexual assault and aggravated criminal sexual abuse in violation of sections 12-14(b)(1) and 12-16(c)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1984 Supp., ch. 38, pars. 12-14(b)(1), 12-16(c)(1)). Following a bench trial, defendant was convicted of both charges, but was sentenced only on the assault. Defendant was sentenced to 15 years in the Department of Corrections and was ordered to pay a fine of $5,000, $150 restitution and costs.
Defendant raises six issues on appeal. He argues that: (1) the search warrant used to obtain evidence against him was defective in that it was vague in scope, it was not supported by probable cause and it was preceded by an illegal arrest; (2) his conviction should be reversed because the only substantive evidence against him was a photograph; (3) the State failed to prove him guilty beyond a reasonable doubt; (4) the court erred in denying his motion for the payment of fees for expert witnesses; (5) one of his two convictions must be vacated because they were based on a single act; and (6) the court abused its discretion when it sentenced him to 15 years of incarceration and ordered him to pay a $5,000 fine and $150 restitution. Our resolution of these issues necessitates review of the evidence presented at defendant's suppression hearing, trial and sentencing hearing.
At defendant's suppression hearing, Kenneth Cannon testified that he is the owner of Flash Foto, a photo processing business in Carbondale, Illinois. On February 1, 1985, one of his employees asked him to look at some photographs that were being packaged and readied for pickup. The packaging bore defendant's name; however, Cannon did not know who had brought the pictures into the shop for processing. Cannon had previously instructed his employees that he was to decide whether sexually explicit or "lewd" photographs should be returned to customers. Cannon viewed the photographs and became concerned that the child in the photo was being sexually exploited or molested. Soon after Cannon viewed the pictures, Jack Womick came into Flash Foto. Womick, a friend of Cannon's, worked with an attorney, so Cannon asked Womick to look at the photos and advise him of his legal liability. After viewing the pictures, Womick agreed that the police should be contacted. Since Womick was en route to the police station, he told Cannon he would inform the police.
Shortly thereafter, Lieutenant Hill of the Carbondale police department arrived at Flash Foto and, after viewing the photographs, determined that some action should be taken. Hill called the State's Attorney's office, seeking a warrant. After Hill left, two plain clothes officers arrived. They remained there until defendant came in to pick up his photographs. The officers followed him out of the store when he left.
Defendant's son testified that he, his father, sister, and brother stopped at Flash Foto at approximately 4:30 p.m. on February 1, 1985. Defendant went inside. When he came out, he walked to the car and, as he started to open the door, two men walked up to him. They took the photographs defendant had in his hand, displayed badges, and closed the car door. Nothing was said prior to taking the photographs from defendant. After the police had talked to him, defendant got back in the car and said they had to follow the officers to the police station. When they arrived at the station, the children were escorted by the officers to a waiting room. Defendant's son next saw defendant as they were leaving the station at 9 p.m. that evening.
Defendant testified that on the morning of February 1, 1985, he took six rolls of color print film to Flash Foto to be developed. He was told he could pick them up after 4 p.m. He returned around 4:30 p.m. with his three children. He entered the photo shop, claimed his photographs, and walked back to his car. Upon reaching his car, defendant noticed two men approaching rapidly from the direction of the photo shop. Defendant said he had his hand on the car door, and the door partially opened, when the two men took the pictures from his hand, identified themselves as police officers, asked for identification, and closed the car door. Defendant produced his driver's license. He said the officers told him to follow them to the police station so that he could answer some questions for them.
When they reached the police station, defendant asked the officers how long it would take, and they replied, "[Just] a few minutes." Defendant told his children they could stay in the car; however, the officers opened the door and told them to come inside. The officers told defendant that the children would be more comfortable in the police station.
Defendant said he was separated from his children for approximately four hours. He was escorted to a room and told to sit down and wait. When the officers returned, they told him he was not under arrest, but they were nonetheless going to read him his rights. After they read him his rights, defendant signed a paper indicating that he understood them. When the officers got up to leave, defendant asked if he could see his children. The officers said, "No, not yet." They left and did not return for 40 minutes to an hour.
When they came back they had his photographs. Defendant said the photographs were private, family pictures and they were not entitled to look at them. He told them he wanted to leave. The officers told him he could not leave until the State's Attorney arrived. Defendant then refused to answer some of their questions. Hill joined the other officers and told defendant that he had been interrogating defendant's children and his questions had brought at least one of them to tears. He told defendant he would ask them more questions if defendant did not cooperate.
When State's Attorney Clemons arrived, "several hours" after defendant had arrived at the station, he and another man again read defendant his rights. They asked defendant his name and left. Sometime thereafter, defendant asked about leaving or seeing his children. According to defendant, Mr. Clemons responded, "In a little bit." Later, defendant again asked and Clemons said to be patient. Defendant protested that he had been patient, to which Clemons replied, "Don't push me, or I'll charge you right now."
Defendant's wife eventually arrived at the station and was allowed to see defendant. One of the officers asked if defendant would consent to a search of his home. Defendant asked to speak with an attorney and was allowed to telephone one. Shortly after defendant's attorney arrived, the police informed defendant and his attorney that a search warrant for defendant's home had been obtained. At 9 p.m. defendant was allowed to see his children.
The police escorted defendant to his house and searched it, confiscating and removing various items. They returned around 1 a.m., February 2, 1985, and placed defendant under arrest.
On cross-examination, defendant stated that the officers did not restrain him in any way until they returned to his house to arrest him. He did not tell them while outside the photo processing store that he did not want to go to the police station. While at the station, he told police he had a large quantity of photographs at his residence.
Defendant's wife testified that on February 1, 1985, she was to meet her family at the mall for dinner and a movie. When they did not meet her, she called her house, drove home, then drove to her husband's office. She was at the office, around 6:30 or 7 p.m., when she received a call from the police department informing her that her husband and children were at the station. An officer asked her to come to the station.
When she arrived at the station the police took her into a room and said they wanted to talk to her about some photographs her husband had picked up that evening. She was told the investigation concerned possible sexual abuse of her children. She asked about her husband and children, but the officers said they wanted to speak with her first. She was questioned for 10 or 15 minutes, during which time she asked to see her children and inquired as to the whereabouts of her husband. They told her that her husband was in another room. During the questioning, Mr. Clemons showed her some pictures and asked her how she felt about them.
She and her family left the police station between 9 and 10 p.m. They were escorted home by police officers who searched their home. The police returned later, in the early morning hours, and arrested defendant.
Larry Hill, a lieutenant with the Carbondale police department, testified that Jack Womick asked to speak with him at 3 p.m. on February 1, 1985. Womick said he had seen some pictures at a photo store and he thought the police ought to be aware of them.
Hill went to Flash Foto and spoke with the manager, Mr. Cannon, who showed him the photographs in People's group exhibit No. 1. Hill believed them to be lewd and illegal. Hill called the State's Attorney's office, explained what he had found, and asked for direction as to an appropriate course of action. After he called the State's Attorney's office, he again spoke with Cannon, who informed him that the person who brought the photographs in would probably be back to pick them up later in the day.
Hill returned to the police station and sent Detectives Goro and Barrett to the photo store to attempt to talk to the person who picked up the photographs. He told them to detain and question anyone who came to pick up the photos. Goro and Barrett departed for Flash Foto around 4 p.m. They returned shortly after 4:30 p.m. in the company of defendant and his children.
The children went into the lounge and Sergeant Moss stayed with them. Defendant accompanied Hill and other officers to an interview room. After defendant had been given his Miranda rights by Detective Barrett, Hill placed the pictures in People's group exhibit No. 1 before him and asked if the girl in the pictures was his daughter. Defendant replied affirmatively. Hill then asked defendant why he had taken the photographs. Defendant replied that he took pictures of everyone in his family. Defendant indicated that he was supposed to meet his wife, so the police attempted to locate her. Defendant did not ask to leave, he did not indicate that he did not want to speak to the officers, nor did he express concern for the safety of his children. The conversation was casual and defendant was cooperative. At one point during the interview, Detective Barrett told defendant that he was free to leave.
Later in the evening the State's Attorney and an assistant State's Attorney arrived at the station. Defendant was again advised of his Miranda rights before the State's Attorney talked to him. He was told he was not under arrest. In the course of the interview, defendant stated that he had pictures at home similar to those in People's group exhibit No. 1.
The police asked if they could look at the other photographs. Defendant said, "No, I think I better call an attorney." At that point defendant's wife arrived and he was allowed to talk to her. He was then allowed to call an attorney. At that point law enforcement personnel decided that they would try to get a search warrant.
Hill was the complainant. He took the unsigned warrant and the photographs to Judge Richman's home. The Judge examined the photographs and the warrant, and signed the warrant. When Hill returned to the police station, defendant's attorney had either arrived, or arrived shortly thereafter. The police, the Hebels, and their attorney went to the Hebel residence, where the police executed the warrant. The police found thousands of photographs, many of which were devoid of evidentiary value, so they agreed with defendant and his attorney that they would take everything and return some of it later in order to expedite the search.
Robert Goro, a detective with the Carbondale police department, testified that on February 1, 1985, at approximately 3:30 p.m. he spoke with Hill, who instructed Goro and Barrett to go to Flash Foto, stop whomever came in to pick up the photos, and ask them if they would come to the station to discuss the pictures. When Goro and Barrett arrived at Flash Foto, they spoke with Kenneth Cannon, who showed them the photographs in People's group exhibit No. 1. The photographs depicted a young female in the nude. Goro and Barrett took up positions in the back of the store and waited for someone to claim the photographs.
Subsequently, Cannon advised them that defendant had picked up the photographs. Goro and Barrett exited the store and "verbally" stopped defendant as he was getting into his car. They identified themselves as police officers and asked defendant if he would come to the police station to talk about his photographs. He agreed. Barrett asked defendant if Barrett could hold the photographs and defendant gave them to him. Defendant followed the officers to the police station in his own car.
Detective Don Barrett of the Carbondale police department testified that he and Goro were dispatched to Flash Foto on the afternoon of February 1, 1985, to attempt to contact a person who had dropped off some photographs of a nude young girl. They spoke with Mr. Cannon, viewed the photographs which Barrett considered evidence of a crime, then waited in the back room of the shop.
About 4:30 p.m., Cannon informed them that someone had come into the shop, had picked up the photographs, and was leaving. Cannon described the man's clothing. The officers exited the store and saw a person wearing clothing as described preparing to enter a car in front of the shop.
They approached the man, identified themselves as police officers, and asked him for identification. They told him they needed to speak with him about the photographs and asked if he would be willing to accompany them to the Carbondale police department. He agreed. Defendant was not told that he was under arrest or that he had to come to the station. He never indicated that he did not want to go. Barrett asked if he could hold a particular packet of photographs (previously marked with a star) while in transit to the police department. Defendant agreed to the request and gave Barrett the pictures. Defendant then followed them to the station.
When they arrived at the police station, Barrett suggested that defendant's children wait in the lounge and that Sergeant Moss take care of them while the officers and defendant talked. Defendant agreed. Defendant was read his rights and indicated that he understood them. He was told he was not under arrest. Lieutenant Hill showed defendant the photographs. After defendant acknowledged that he had taken them, the officers tried to ascertain the reason. Specifically, they were trying to find out whether there had been any sexual contact between defendant and the young girl in the photographs or any other young girls.
During the initial interview, defendant did not express a desire to leave the station or terminate the interview. He did not voice any complaints regarding his children. He was allowed to make several telephone calls. He tried unsuccessfully to contact his wife; however, Barrett was able to contact her around 6:30 p.m. at defendant's office. Barrett told defendant's wife not to worry, but a sensitive matter was being discussed with her husband. Barrett told her he thought she should come to the station to discuss the matter.
Upon her arrival at approximately 6:45 p.m., Barrett spoke with defendant's wife. She indicated that she knew defendant had taken photographs of their children, dressed and undressed. She was allowed to see her husband, and, according to Barrett, was at no time denied that opportunity.
Barrett was present when Hill asked the Hebels if they would consent to a search of their house. Defendant and his wife conferred for several minutes, then indicated that they wanted to talk to an attorney. After they had done so, Barrett was advised by Hill that the Hebels had decided not to consent and that a search warrant would be sought.
Shortly after the State's Attorney arrived at approximately 6:11 p.m., the State's Attorney and an assistant talked with defendant. They once again read him his rights and reminded him that he was not under arrest. Defendant told the State's Attorney that he had taken the photographs to show the development of his children. He said he had similar photographs at his residence. Barrett did not hear the State's Attorney threaten defendant or tell him he could not leave.
Based upon the foregoing testimony, the court denied defendant's motion to suppress. The court found that the officers were justified in their belief that the photographs constituted evidence of a crime, that the officers acted reasonably when they waited for and stopped the person who claimed the photographs, that defendant had not been arrested when he drove to the police station, and that his statement to the police was voluntary.
At trial, Detective Barrett testified substantially as he had at the suppression hearing; however, his trial testimony was at odds with his prior testimony in one respect and provided some additional enlightenment in another area pertinent to the question of suppression. Barrett said he had "told" defendant that they "needed to speak to him" concerning some photographs that were among those that he had picked up. Barrett also indicated that he had possession of defendant's driver's license at the police station.
Detective Michael Osifcin of the Carbondale police department testified that he was at the Hebel residence on February 1, 1985, at approximately 9:30 p.m., to execute a search warrant. In the course of the search he found hundreds of slides, photographs, and negatives depicting children engaged in lewd exhibitions of genitals. Osifcin found the photographs in a crawl space beneath a closet in defendant's house. People's exhibits Nos. 1 through 15 were found in the crawl space.
The 10-year-old victim testified that she stayed with defendant's daughter one night in the summer of 1984. Defendant came to pick her up in the afternoon at her grandmother's trailer. When they arrived at defendant's residence, the victim played with defendant's daughter until defendant suggested that they go swimming. The girls changed in defendant's daughter's room. They were undressed when defendant came into the room with a Polaroid camera and said, "[Wait], I want to get a picture of you." People's exhibits Nos. 1 through 4 are photographs defendant took of the girls at that point in time.
The victim stated that she did not remember defendant taking any pictures of her after she came back from the Ramada Inn. She identified People's exhibits Nos. 5 and 6 as photographs of her sleeping in defendant's daughter's bed. She testified that she never again spent the night at the Hebel residence.
The victim's grandmother testified that defendant came to pick up her granddaughter on one occasion in the summer of 1984. She was to ...