APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 25, 1972.
An indictment was filed in the circuit court of Lake County charging Dwight Springs, Johnson Hill and Ted Braden with the rape of Katherine Kwas and with attempt to rape Angela Vocino. The count charging the attempt was dismissed prior to trial. A jury returned verdicts of guilty as to Hill and not guilty as to Braden. Springs, who had obtained a severance, was found guilty in a separate trial. Sentences of not less than four nor more than six years were imposed.
Because the charges against Springs and Hill have a common background, and as the defendants' contentions here are similar, the appeals have been consolidated. The contentions are: (1) their right to trial by jury was violated because the jury was not properly instructed; (2) they were not proved guilty beyond a reasonable doubt.
The defendants and Braden met Katherine Kwas and Angela Vocino, who were 19-year-old college students, in Waukegan at about 8:30 P.M. on March 14, 1969. The girls, who were driving to a dance at the naval station at Great Lakes, stopped in Waukegan so that Kwas could purchase hose to replace the damaged hose she was wearing. Upon returning to the car, Kwas was unable to start it and she asked the defendants and Braden, who were driving by, to assist them. After the car had been started the girls went with the three men to the apartment of one of the men. There, between 9:30 P.M. and midnight, the defendants had intercourse with Kwas. At about 12:30 A.M. Kwas left the apartment without Angela, who was in another room of the apartment. She unsuccessfully attempted to start her car, then walked to a tavern, and phoned the police, reporting that she had been raped.
Kwas testified in the trial of Springs and in the trial of Hill and Braden. She testified that after the defendants and Braden had assisted her in starting her car, they had asked Angela and her to do them a favor. They said they were members of a band, and in some way not made clear by the record, it would assist them in acquiring musical instruments if they would pose as go-go girls when introduced to the men's booking agent. The girls agreed, she said, to return the men's favor in starting the car. She testified they drove to an apartment building in Waukegan where the girls expected to meet the booking agent. After they entered the apartment the men and they discussed bands and go-go girls, and Kwas testified that she gave Springs her telephone number so that they could call her if the band ever played in the Milwaukee area where the girls lived. Hill dialed a telephone number and told her to ask for a man named John or Johnson. She did this, she said, but as Hill had curiously predicted to her Johnson could not be reached at the number called. Then Angela and she were led, according to her testimony, into the living room to dance even though she said she did not want to dance and though she and Angela expressed their desire to leave the apartment.
When they attempted to leave, she testified, someone turned out the lights in the apartment, except for a lamp in the living room. She tried to use the telephone to call for help but someone took it from her. She began to scream, and someone pushed her onto the living room couch. She struggled with Hill and he kissed her. Then Springs slapped her and told her that if she did not "shut-up" she would not "get out of this whole." She testified that Springs then pulled her to the floor by her ankles, took off her undergarments and fondled her while Hill straddled her shoulders and forced her to submit to a deviate sexual act. When Hill left the living room Springs forced her to perform a deviate sexual act, and forced her to have intercourse with him. Kwas said that all of this time she was struggling and trying to get away. When Springs left the room she began to dress, but Hill returned. He pushed her to the floor, slapped her, pulled her hair and struck her head against the floor. Then he forced her to have intercourse with him. Hill then helped her find her shoes, she said, and told her he would help her to start the car. She testified she called to Angela and was told that Angela would meet her at the car. Hill apparently went outside with Kwas but then returned to the apartment building. She said that when she could not start her car, she walked to a tavern and phoned the police.
She testified that her glasses had been broken, her skirt had been ripped and her mouth was bloody. Later, she said, bruises appeared on one of her ankles, on one thigh and near one breast.
Angela Vocino's testimony as to the events preceding the turning out of the lights in the apartment was substantially the same as that of Kwas. After that, she said, Hill and Braden took hold of her as she attempted to leave the apartment. They dragged her into the bedroom, tore off her hose and tried to remove her other clothing. She testified that at this time she heard Kwas screaming and objects being thrown about in the other room. Braden forced her to kiss him, she said. Then Hill slapped her, and she was not allowed to leave the room until the police arrived.
Dr. Stephen Sipos, the physician who examined Kwas early in the morning of March 15, testified at both trials. He said that his examination showed that Kwas had engaged in sexual intercourse within several hours prior to the examination and that there were no signs of trauma to the internal pelvic organs, or other parts of her body. On cross-examination, he testified that often bruises will not become apparent until several hours after the trauma which caused them.
Kwas' mother, Mrs. Alethea Kwas, testified at both trials. She said that she had seen her daughter's broken glasses, ripped skirt and broken purse chain. She also testified that when she had visited her daughter at the hospital she had seen bruise marks on her right ankle.
Curtis Brown, a Waukegan police officer, also testified at both trials. He said that when he saw Kwas shortly before midnight of March 14, she was crying, her glasses were broken and there was blood on her mouth. She told him she had been raped.
Nels Sorenson, another member of the Waukegan Police Department, was a witness at both trials. His testimony was that when he saw Kwas at the police station about one o'clock in the morning of March 15, she had appeared to be emotionally upset and had encrusted blood around her mouth. He said that some of her clothes were torn and her glasses were broken.
Springs took the stand, but his testimony was limited to answering "no" when asked by the attorney who represented him at trial whether he had raped Kwas. He said on cross-examination that he had been with Kwas in the apartment, but at that point his attorney objected to questioning, apparently on the ground that it would ...