APPEAL from the Circuit Court of Sangamon County; the Hon.
WILLIAM H. CHAMBERLAIN, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 20, 1972.
Defendant-Appellant Larry Hatfield, Stuart Wiant, and John L. Powell were jointly indicted for the offense of Rape allegedly committed December 29, 1969. The victim was Eileen Shaheen, who was 17 years of age. Count II of the indictment charged the same three individuals with burglary of the residence of John H. McCutcheon, Rural Route 5, Springfield, Illinois, on December 29, 1969.
Counts III and IV charged the defendants with contributing to the sexual delinquency of a child and with theft. Counts III and IV were subsequently dismissed by the Court.
On May 12, 1970, Defendant Wiant entered a plea of guilty to Counts I and II, and was sentenced to an indeterminate term of 4 to 10 years on each count, the sentences to run concurrently.
Commencing June 8, 1970, the Defendant Hatfield was tried for rape and burglary before a jury, which returned a verdict finding him guilty of attempted rape and burglary. Defendant was sentenced 4 1/2 to 14 years for the attempted rape and 4 1/2 to 14 years for burglary, the sentences to run concurrently. This was defendant's first felony conviction. His record discloses a previous conviction in 1969 of criminal damage and trespass of property for which he had been given probation. He was 18 years of age at the time of the offense here in question.
On the morning of December 29, 1969, Powell and Wiant went to the home of Defendant Hatfield. They drove there in Powell's 1958 Thunderbird. The three men left defendant's home in a 1958 Ford station wagon with blacked-in windows, Powell drove. They proceeded north on Walnut Street Road, intending to commit one or more burglaries. As they approached the residence of John McCutcheon they observed Mr. and Mrs. McCutcheon leave the premises in their automobile at approximately 10 A.M. Shortly after the McCutcheons' left, the three drove into the driveway of the McCutcheon home, Wiant went to the front door, knocked and rang the doorbell for some time in an effort to ascertain whether or not anyone remained in the house. There being no response he returned to the station wagon which Powell then drove to the rear of the house where the defendant and Wiant got out, intending to enter and commit the burglary. Powell then left the premises in the station wagon. There were several inches of snow on the ground, and he became momentarily stuck in the snow and finally backed out to the highway. He intended to return later, pick up the defendant and Wiant, and the property taken from the home.
Eileen Shaheen, who was 17 years of age at the time, resided in the residence with her grandparents, Mr. and Mrs. McCutcheon as did her mother. Her mother worked, had left earlier, and Eileen was alone in the house. It was Christmas vacation, she was awake but still in bed and dressed in her pajamas. She heard the insistent knocking on the front door, and the ringing of the doorbell and soon went to the window. She saw a man with black hair run up the steps, she subsequently identified this person as Wiant. She saw the tan station wagon with the blacked-in windows. It was momentarily stuck in the snow, the driver's window was down. She observed the driver; her description of the driver given to the police was that of a man with blonde hair and whiskers, and subsequently identified the driver as Powell.
Eileen became frightened when she saw Wiant on the back steps, ran into her mother's bedroom and hid in the closet where she remained standing. She closed the sliding doors to the closet. She then heard the back door broken in. Someone then ran up the steps and pulled the telephone from the wall. A person then came into the room where she was hiding and begin to rummage through the dresser drawers. This individual then opened the closet door, discovered Eileen's presence, looked at her for "a couple of seconds", then placed his hands in front of her face. She subsequently identified this man as the defendant Hatfield. Hatfield then yelled to Wiant who came into the room, though she was prevented from seeing him by reason of defendant's hand over her face. He did speak from time to time. They then covered her head with a dress. The two men then dragged Eileen from the closet, Wiant got on top of her, held her hands, struck her in the face with his fist, finally told defendant to hold her legs and spread them apart, which he did, and Wiant then raped Eileen. The defendant then got on top of her, both men held her arms, but no one held her legs, and defendant did not make penetration. There is absolutely no question but that rape occurred; there is no point in detailing at length physical findings testified to by Doctor William Bernard who examined the victim shortly after the incident; he testified to the presence of sperm, the tearing of the hymen and to the other uncontradicted physical and conclusive evidence of forcible intercourse which had, in his opinion, occurred.
Following the attack defendant and Wiant put the bedspread over her head, tied her hands behind her back and again placed her in the closet; she was told that if she told anyone what had happened she would be killed. A few minutes later the defendant returned, and talked to Eileen for about five minutes. He asked her name, how old she was, told her to straighten up the room after they left, told her that Wiant was apprehensive that she might be able to identify the defendant, told her they wanted to take her grandfather's car. She did not hear the men leave the house. She was able to differentiate the two men, after her head and eyes were covered, by the difference in their voices. She had seen defendant when he opened the closet door, and he had yelled at Wiant to announce his discovery while holding his hand over her face. She was able to distinguish a real deep voice from a soft spoken one. Thus she identified Wiant as the first man on top of her from the second, unsuccessful attempt made by defendant. She also identified, by voice recognition, that it was defendant who returned to the closet and talked to her for five minutes.
Mr. and Mrs. McCutcheon returned home about 10:30 A.M.; found Eileen in a state of hysteria, her face bruised; she told them of the attack, her mother was called and she was taken to the hospital where Doctor Bernard examined her and directed that she remain in the hospital overnight. He administered the drug visterene which, he said, calms a patient so that she can think straight and makes a person more alert so that accurate information can be elicited.
While Powell was driving around the neighborhood in defendant's station wagon he drove both north and south past the McCutcheon residence, apparently awaiting some signal from his confederates to return to the house. He made several turn arounds in the driveway of a small country grocery store operated by Elam Phillips. Phillips observed that the driver had light blonde hair and a goatee which confirmed Eileen's description.
The area around the McCutcheon home is a rural area, and neighbors observe things. Two neighbors had seen the station wagon with the blacked-in windows and had seen two men leave the station wagon and run to the rear of the house and had seen the vehicle become momentarily stuck in the snow, in the process of leaving the premises. Still another neighbor noticed something. Donald Patrick and his son Mark, operate a heating and air conditioning business, and their shop and home is in the general vicinity of the McCutcheon home. As they were getting ready to leave in their truck they observed the tan station wagon with the blacked-in windows cruising slowly in the neighborhood, did not recognize the car and their suspicions became aroused so they began to follow it. Powell observed this became alarmed and driving at speeds up to 80 miles per hour took off for Springfield with the truck behind him and gaining. Finally, at the intersection of Walnut and North Grand streets in Springfield they got close enough to secure the license number of the station wagon and promptly called the Crime Stop number, related their suspicions and gave the police the license number of defendant's station wagon.
Powell proceeded to defendant's home, left the station wagon there and drove his own car, the 1958 Thunderbird out past the McCutcheon house, honked the horn, proceeded down the road to the store operated by Mr. Phillips and went in and purchased a bag of potato chips. Phillips noticed that this was the same man whom he had previously observed in the station wagon and wrote down the license number of Powell's Thunderbird and subsequently gave that number of Officer Gribble.
Powell then returned to the McCutcheon residence where defendant and Wiant ran out and got in the car and the three then returned to the City. Powell testified to these matters on behalf of the People. He had previously plead guilty to burglary of the McCutcheon residence and had been given probation and it is a fair inference that the plea, and the granting of probation had been negotiated in exchange for his willingness to testify. However, Powell's testimony is supported by numerous independent witnesses as above indicated. Wiant was not called as a witness. The police secured descriptions of the three men from Miss Shaheen. She described Powell the driver of the station wagon as being light blonde and with whiskers. This matches the description of the other witnesses. It also matches his appearance in the photo of him introduced during the hearing to suppress identification except that he is clean shaven. He admitted to wearing a goatee on December 29th. She described the man who ran up the back steps as having black hair. The photo of ...