People v. Clendenin, 2-07-0359.
| Citation | 913 N.E.2d 1179 |
| Decision Date | 18 August 2009 |
| Docket Number | No. 2-07-0359.,2-07-0359. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles E. CLENDENIN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Stephen A. Brundage, Attorney At Law, Wheaton, IL, John A, Barsanti, Kane County State's Attorney, Stephen E. Norris, Deputy Director State's Attorneys Appellate Prosecutor, Rebecca E. McCormick, State's Attorneys Appellate Prosecutor, Mt. Vernon, IL, for Appellee.
Following a stipulated bench trial, defendant, Charles E. Clendenin, was convicted of unlawful possession of child pornography (720 ILCS 5/11—20.1(a)(6) (West 2002)). He appeals, arguing that the trial court erroneously denied his motion to quash arrest and suppress evidence, that his trial counsel provided him with ineffective assistance, and that the evidence was insufficient to support his conviction. For the reasons explained below, we reverse and remand.
On September 5, 2003, defendant was charged with unlawful possession of child pornography. The information alleged that defendant possessed a video clip of a female child under the age of 18 years engaged in an act of sexual penetration. On September 19, 2003, defendant's counsel, Larry Wechter, filed a motion for discovery, seeking relevant materials concerning defendant's prosecution.
In October 2003, defendant filed a motion to quash arrest and suppress evidence. Defendant sought suppression of items that Ellen Bailey took from his home on August 29, 2003, and later gave to police, as well as all items obtained during a subsequent search of his home by police. Defendant also sought to quash his arrest, which transpired after the police examined the items Bailey had given them. On January 23, 2004, the trial court held a hearing on the motion to quash and suppress.
Ellen Bailey was the first witness. She testified that she was defendant's neighbor in St. Charles, Illinois. She and defendant had become romantically involved in the three months Bailey had known defendant. The two had exchanged keys to their residences and visited each other from time to time. Defendant traveled occasionally and had asked Bailey to check on his residence and clean it when he was absent. Defendant also allowed Bailey to use his washing machine.
Bailey testified that, on August 29, 2003, defendant was on vacation in Russia, and Bailey entered defendant's residence to retrieve a vacuum cleaner she had left there. While in defendant's residence, Bailey noticed what she believed might be four pinhole cameras next to defendant's computer. Bailey testified that, because she had young children, she became concerned upon seeing easily hidden cameras. Bailey decided to look around to see if she could find any recordings defendant might have made. Bailey discovered a zipper case containing compact discs (CDs) on a shelf behind defendant's computer. Bailey opened the case and observed around 50 CDs, only some of which were labeled. Bailey testified that the discs that were labeled had handwritten dates on them; she could not recall any other information being written on the case or the discs. Bailey took the cameras and the discs back to her residence.
Bailey testified that she placed several of the discs into her own computer. Bailey testified that she looked at the content of only one of the discs, however. The files on that disc had "very disturbing" titles such as "`mother f____s 8-year-old'" and "something about toddler daycare." Bailey viewed one of the files, which depicted what appeared to be a "grown man having sex with a 13-year-old." Bailey kept the disc, believing it to contain child pornography. Bailey returned the remainder of the CDs and the case to defendant's residence, but kept the pinhole cameras.
Bailey testified that, on September 1, 2003, she called West Chicago police officer Bruce Malkin, a friend she had known for a long time. Bailey met with Malkin at the West Chicago police department and gave him the cameras and the CD she had taken from defendant's residence. Bailey testified that she told Malkin the circumstances of her discovery of the disc, including that defendant was out of the country and had not given her permission to investigate or take any of his belongings. Bailey testified that she told Malkin that she had permission only to clean defendant's residence and water his plants. Bailey then told Malkin "what she saw on the disc" she had viewed.
Bailey testified that, on the following day, she met with police officer Andrew Lamela at the St. Charles police department. Bailey gave Lamela the same information that she had provided to Malkin about the circumstances under which she discovered the disc and its contents.
Malkin testified next. His testimony corroborated and mirrored Bailey's about the circumstances under which Bailey had taken the CD. Malkin testified that Bailey told him that she had previously viewed the contents of the disc at her residence. Bailey told Malkin that the disc contained "what she suspected to be child pornography." Malkin testified that Bailey was very upset and had difficulty describing the contents of the disc. Malkin accepted the disc from Bailey and noticed that the external label on the disc contained only a date, "`20 November 2.'" Malkin used his own computer to view the contents of the disc but did not seek a search warrant before doing so. Malkin found several images and video files on the disc. He viewed one of the video clips and believed it depicted child pornography. Malkin then placed the disc and the pinhole cameras into evidence at the West Chicago police department until he turned them over to the St. Charles police department.
Lamela was the final witness at the hearing. Lamela testified that, on September 2, 2003, he spoke with Bailey, receiving the same background information that Bailey had recounted to Malkin. Lamela testified that, after speaking with Bailey, he wanted to investigate the CDs in defendant's residence as well as to look at the disc Bailey gave to Malkin. Lamela testified that he did not seek a search warrant at this time.
Lamela testified that, on September 3, 2003, he met with Malkin and received the CD and cameras that Bailey had provided. Malkin told Lamela that these were the items that Bailey had taken from defendant's residence. Malkin also informed Lamela that Bailey admitted that she did not have defendant's permission to take anything from his residence. Lamela testified that there was nothing on the outside of the items to indicate that they contained child pornography. Lamela viewed the disc for himself without first seeking a search warrant. He determined that the disc contained child pornography.
Lamela testified that, later on September 3, 2003, he arrested defendant at his place of employment. At the police station, Lamela advised defendant of his Miranda rights. Defendant agreed to give a statement. Defendant first gave a nonrecorded oral statement, which Lamela summarized in a police report. Defendant later gave a second statement, which Lamela recorded on audiotape. After he took the statements, Lamela asked defendant for permission to search his home, and defendant gave his consent. While searching defendant's home with fellow officers, Lamela seized a case containing several CDs.
On February 25, 2004, the trial court issued its decision denying defendant's motion to quash and suppress. The trial court found that Bailey was not acting as an agent of the State when she removed the disc and cameras from defendant's home, and hence there was no state action involved in the police's acquisition of those items. The court further found that, when the police examined the items Bailey gave them, they had probable cause to arrest defendant. Defendant filed a motion to reconsider, which the trial court denied.
On September 23, 2004, the parties appeared before the trial court for a bench trial based on stipulated evidence. This exchange took place:
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