APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT:
The defendant, Robert Hall, was charged with the offenses of aggravated kidnapping and rape in violation of Ill. Rev. Stat. 1967, ch. 38, pars. 10-2, 11-1. Following a trial by jury, the defendant was found guilty of rape and was sentenced to a term of not less than ten nor more than fifteen years in the Illinois State Penitentiary.
On appeal, the defendant raises the following issues:
1) Did the trial court err by admitting into evidence certain statements made by defendants?
2) Did the trial court err by failing to conduct a preliminary hearing to determine the admissibility of an oral statement made by defendant and later introduced by the prosecution at trial?
3) Did the trial court err by failing to conduct a preliminary hearing concerning the competency of a twelve-year-old child to testify?
4) Did the trial court err by denying defendant's motion to suppress certain physical evidence?
5) Was the defendant denied a fair trial when in closing argument the prosecutor told the jury that under the law a fifteen-year-old could not consent to intercourse?
6) Did the trial court err by refusing to give defendant's instruction concerning consent in rape cases?
7) Was the defendant denied a fair trial where the prosecutor stated during closing argument that a police officer had testified to a conversation with defendant and the officer's testimony concerning that conversation was uncontradicted?
8) Was the defendant denied a fair trial when the prosecutor, after direct examination of a police officer and a crime lab technician, showed them their respective case reports in the presence of the jury and asked if they recognized and authored the reports?
9) Did the State prove beyond a reasonable doubt that the sexual intercourse was by force and against the will of the complaining witness?
The facts of this case, when reduced to a minimum, disclose that Deborah Miller, age 15, visited the home of her aunt on October 26, 1967. About 7:00 P.M. on the next day, Miss Miller, intending to return to her own home, left her aunt's home and walked to a nearby bus stop at the corner of 59th and Halsted Streets, Chicago. Miss Miller's two cousins, Sharene Miller and James Green, accompanied her to the bus stop. A group of boys were standing on the corner as Miss Miller and her cousins approached and one of these boys, the defendant, reached out and grabbed Miss Miller by the arm. She pulled away but the defendant quickly regained his hold on her arm. Another boy came up and said something to the defendant whereupon the defendant, who was trying to kiss the struggling young lady, said: "You better do what he say because he has a gun." Miss Miller's two young cousins had, at this time, proceeded across the street and were shouting for her to hurry across the street because a bus was coming. Miss Miller struggled to free herself from the defendant's grasp but was unable to do so. The other boy then grabbed her other arm and she was pulled toward a nearby alley. Miss Miller was told to "go on up in the alley" and, with the defendant holding her arm, she walked through the alley for about two blocks. Miss Miller was then taken across a street, through a gangway and up a stairway to a porch. Each of the boys had sexual intercourse with her on the porch. The defendant then told her that she could not leave and he took her through a back door into his apartment. There were several people in the apartment and the defendant introduced Miss Miller as his girl friend. Miss Miller sat in a kitchen chair and began crying. Shortly thereafter, the defendant's mother came into the kitchen and said that the police were looking for a girl named Deborah Miller. The defendant then grabbed Miss Miller's hand and tried to pull her out the back door. While being pulled through the doorway, she struck her head and was knocked unconscious. She was found lying on the floor between the kitchen and the rear porch by a police officer who was investigating the case and was taken to the Englewood Hospital for treatment. Subsequently, the defendant was arrested and charged with aggravated kidnapping and rape.
Defendant's first point concerns the admissibility of certain statements made by defendant to a police officer prior to arrest and introduced at trial during the officer's testimony. Specifically, Patrolman John Marusich testified in part as follows:
"Q. What else, if anything, did you see as you walked through that apartment?
A. I saw a young girl lying on the floor. She appeared to be unconscious. Her eyes were closed.
She was lying on the floor between the kitchen and the rear porch.
Q. Do you now know the name of ...