APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. F. EMMETT MORRISSEY, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
In a bench trial in the circuit court of Cook County, defendant, Larry B. Taylor, was convicted of the crime of rape and sentenced to the penitentiary for a term of not less than 8 nor more than 20 years. His conviction was affirmed by the appellate court (121 Ill. App.2d 403) and we granted his petition for leave to appeal. The critical issue involved is whether the admitted act of sexual intercourse was proved beyond a reasonable doubt to be forcible and against the will of the complaining witness.
The incident took place on the night of September 18, 1967, in Chicago. The complaining witness was 16 years of age at the time and a senior high school student. The defendant was 30 years of age and a college graduate. For purposes of contrast and better understanding we shall state the facts in chronological segments as they were related by both parties when they testified.
They met in the parking lot of a shopping center at about 8:45 P.M. as the complaining witness was walking to meet her boy friend who worked in a restaurant in the center. Defendant, on his way to a movie, drove up to her side and asked her name, where she was going and whether she lived in the neighborhood. She testified that after she answered these questions defendant said, "I have a gun and I want you to get in the car," that she thought he had a gun in the crook of his arm but she never actually saw it then nor at any time throughout the rest of the evening, that he told her to walk around the front of the car and get in, otherwise "he would shoot me," that she did what she was told, opened the door herself and got in the front seat; that he told her there was no need to scream or yell as no one would hear her, that lights were on in the stores and over the parking lot; that he made her sit on the floor with her head on the seat and then he drove off.
Defendant testified that after the complainant answered his preliminary questions he suggested that, maybe, she would like to take a ride, that she asked what he wanted to do and that when he said, "Just drive around," she said, "All right," and walked around the car, opened the door and got in. He stated that he did not have a gun, never owned one in his life and did not mention a gun to her or threaten her in any way, that he did suggest that she sit on the floor, but only because she expressed concern about someone seeing her, that the parking lot was well lighted and a number of people were getting in and out of cars approximately 75 or 100 feet away.
In the ensuing 35 or 40 minute ride defendant testified they drove on well traveled streets and in heavy traffic at times, that they stopped for a number of stop signs with cars on both sides of them and that the complaining witness neither made nor attempted to make any outcry. They talked about religion, metaphysics and love, and that there was a great deal of conversation in which both of them took part. He told her he wanted to make love to her, "that he could teach her something about love," that she replied that he could not, because she knew enough already from her boy friend. To his question as to whether she was a virgin she made no reply but just smiled. In answer to her question he told her he was not married.
The complaining witness testified that, "We had a conversation going on between us the whole time." She remembered asking him for his definition of love, but did not remember what he said. She recalled that he asked her if she were a virgin to which she said she made no reply. She remembered the subject of metaphysics was discussed but she did not remember asking him to explain it. She acknowledged that they had stopped at stop signs and that she had made no effort to get out. She remembered he told her he wanted to make love to her and had asked her if her boy friend had ever done the same. She had no idea how long they drove.
The car was finally stopped on a one-lane dirt road in open land. Defendant testified that he kissed her for a minute or two, that abruptly she opened the door and ran 20 feet to the rear of the car, that she stopped and when he got out she was facing him, that he kissed her and with his arm around her waist led her back, that he did not drag or force her, that he entered on the passenger side of the car, climbed over the gear shift to the driver's seat, that she followed him and closed the door. He then asked her to undress which she began to do with no objection, and when she had removed her blouse and bra, he leaned over and kissed her and she told him not be in such a hurry. He asked her to get in the back seat, which she did, and there removed the rest of her clothes. When he finished undressing in the front seat he said they talked about her menstrual period and decided she would be in no danger of pregnancy. He said he then climbed in back, committed an act of oral copulation on her and she did the same to him, that they then had intercourse and that she engaged in the act readily, without resistance, and even adjusted her position to suit his comfort.
The complaining witness testified that when the car stopped and defendant told her to take off her clothes she opened the door and ran, that he came out, got her, and pulled her back to the car. She stated that he threatened to rip off her clothes if she did not take them off, that he "started to help me take my clothes off, but I told him no, and I took them off myself." She said that she went into the back seat, that he finished undressing in the front and then joined her, that there was no discussion about her menstrual cycle, that he engaged in oral copulation but she did not, and that then he had sexual intercourse with her. To a question as to whether she made an effort to throw him off she said, "I wouldn't know how to." As to whether she made any physical resistance, she replied, "No, I didn't know how to," adding that she had never had any training and that no one had told her what to do in such a situation.
On the way back the complaining witness stated that she was in the front seat with defendant, that he wanted her to put her head in his lap, that he grasped her neck "real tight" and made her perform an act of oral copulation on him, that this was while he was driving and that he would not let her stop and it went on "for a real long time." She said she "probably" talked to defendant but she did not remember what was said. She stated they stopped at stop signs a couple of times but that she would not know any of the streets or whether they were well traveled. They finally stopped in an alley some distance from her home where she got out first and then he did. He told her that if she told her father she would probably be taken to the hospital and the police and it might be embarrassing. She admitted kissing him goodbye and that she guessed he kissed her back.
Defendant testified that on the way back she voluntarily put her head in his lap, that they stopped in a residential area for a few minutes where they kissed some and she performed an act of oral copulation on him, that they again talked a lot about religion and love, that she asked to be let out in the alley so she would not be seen, that she kissed him goodbye and waved to him as he left.
The complaining witness then started to walk and stopped at a fire station. A fireman testified that when she came in between 10:30 and 11:00 P.M. he asked her if he could help her. She said she wanted to use the phone. He then asked her if something was wrong. She replied that she wanted to call her father. As she proceeded to the telephone he noticed that she appeared a little nervous so he asked her again if he could help. She then came back from the telephone and told him she had been raped. The police were called and they took her home and then drove her and her mother to the hospital for an examination. It was stipulated that if the examining doctor were called he would testify to the presence of spermatazoa and also that he found no marks or bruises on the body of the complaining witness and that none of her clothing was torn.
Defendant first contends that the testimony of the fireman constituted prejudicial hearsay which should not have been admitted into evidence. The case of People v. Damen, 28 Ill.2d 464, discusses in detail the background and reasons for the admissibility of declarations of a complainant as an exception to the hearsay rule either as spontaneous or unreflecting statements, or, in rape cases, as corroborative statements admitted to foreclose the assumption that a failure to speak out would in effect be evidence of the fact that nothing violent occurred. We held that to be admitted as a spontaneous statement it must not have been made as a result of questions, that to be admitted as corroborative it must have been made without inconsistent or unexplained delay and also not as a result of questions. In Damen the victim had been brutally assaulted and raped, but in her resistance she had succeeded in asking the telephone operator to call the police before the defendant had torn the phone from the wall and beat her over the head with it. When the police arrived and noted the shambles in the apartment and the bleeding and beaten victim they asked, "What happened?" We held her response to be a spontaneous declaration and that under the circumstances the single question, "What happened?" was insufficient to destroy its spontaneity.
In the case before us the girl did not immediately make any explanation or complaint to the fireman. The fireman asked if he could help her. She said she wanted to use the phone. Even in answer to his second question as to whether anything was wrong she still indicated nothing that could be deemed an uncontrolled and spontaneous utterance of outraged feelings as required by Damen. It was only after she had gone to the telephone and the fireman had persisted in his inquiry as to whether he could help that she told him she had been raped. We find that under these circumstances her statement was not admissible within the meaning of the exception to the hearsay rule either as a spontaneous declaration or for its ...