People v. Hebel

• Decision Date: 23 August 1988
• Docket Number: No. 5-86-0248,5-86-0248
• Citation: 123 Ill.Dec. 592,174 Ill.App.3d 1,527 N.E.2d 1367
• Parties: , 123 Ill.Dec. 592 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert HEBEL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1367

527 N.E.2d 1367

174 Ill.App.3d 1, 123 Ill.Dec. 592

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert HEBEL, Defendant-Appellant.

No. 5-86-0248.

Appellate Court of Illinois Fifth District.

Aug. 23, 1988.

Daniel M. Kirwan, Deputy Defender, Michelle A. Zalisko, Asst. Defender, Office of the State Appellate Defender, Fifth Judicial Dist., Mount Vernon, for defendant-appellant.

John R. Clemons, State's Atty., Murphysboro, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Matthew E. Franklin, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellee.

Justice LEWIS delivered the opinion of the court:

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, "[J]ust 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...