APPEAL from the Circuit Court of St. Clair County; the Hon.
JAMES W. GRAY, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
The defendants, Wilford Jones and Norbert Jones, were both charged with Rape and Aggravated Kidnapping. The jury entered a general verdict of guilty against both defendants and the court sentenced both defendants to a term of not less than fifty, nor more than one hundred years. Both defendants appeal, claiming numerous errors, each of which is considered.
• 1, 2 Both defendants argue initially that the evidence does not establish their guilt beyond a reasonable doubt. "Because of the nature of the crime, reviewing courts are charged with an extraordinarily high standard of care in examining the evidence in a rape case." People v. Brown (1968), 99 Ill. App.2d 281, 241 N.E.2d 653. Therefore a review of the testimony is necessary.
Giselle Jines, a thirteen year old prosecutrix testified that at about five minutes after ten o'clock P.M. she was on her way home with her seven year old sister, when a gold Oldsmobile, with four colored men stopped near her. The man in the passenger side of the front seat got out and the man in the rear seat behind the front passenger seat got out and they asked her for money. There was a streetlight near the place where the car stopped and she saw the two men. She didn't get a good look at the man in the front seat but it was "maybe" Wilford Jones. Norbert Jones was the man in the back seat who got out of the car. She later stated positively that Wilford Jones was in the front seat. Wilford Jones was wearing a green jersey, but she could not identify a jersey shown to her at trial. She identified a tan safari jacket as that worn by Norbert Jones. The men got back into the car and left. After she rounded the corner, the car pulled up again. She told her sister to run and two men grabbed her and put her in the back seat. She was screaming all the time. They took her to a house, where the four men and another man, who was in the house, had intercourse with her. She did not remember who had intercourse with her first or last, but she was sure that all five participated. After she had been released, a black woman picked her up and drove her home, but she didn't say anything about the occurrence to her. After arriving home, the police arrived and she showed them the house were the offense had occurred. Then she was taken to the hospital. Subsequently, at a line up, she was not able to identify the defendants at first, but after sitting and looking at the five men in the line up she identified the defendants.
Officer Henderson testified that, while visiting a friend, he observed two white girls walking on the sidewalk. He heard a screech of brakes and saw three men get out of an Oldsmobile and walk up to the girls. Finding the situation suspicious, he went to his car and got a shotgun. As he started across the street, they ran back to the car and drove off. They passed within four feet of where Henderson was standing. He recognized the driver of the car as Wilford Jones. Subsequently he identified Wilford Jones at a line up.
There was testimony by the examining physician at the hospital that the prosecutrix had been penetrated, and that his findings would not be consistent with a normal type of intercourse. Furthermore, a vaginal smear showed the presence of gonorrhea germs. There was also testimony that some of the prosecutrix's clothing and the couch on which the acts had occurred revealed the presence of blood and/or seminal fluid.
Officer Russell testified that he received a call at 10:30 P.M. to go to the Jines residence. After talking to the prosecutrix, she agreed to try to locate the house where the offense had occurred prior to going to the hospital. She found the house, which was later identified as having belonged to Helen Moore, Wilford Jones' mother. After taking the prosecutrix to the hospital, he returned to search the house. He found a wine bottle and coke bottle on the kitchen table. Later testimony showed the wine bottle to contain a finger print which matched the left hand index finger of Wilford Jones. He testified about a conversation he had had with Wilford Jones during which Wilford admitted that he had a sexual problem. Officer Russell stated that a Clarence Moore, who had been implicated in the offense, was living with Norbert Jones. The gold Oldsmobile belonged to Clarence Moore. He identified the safari jacket as the one which Norbert Jones was wearing at the time of his arrest. Also he identified the jersey as the one which Wilford Jones was wearing when he came to the police station.
Anthony Robinson testified that at about 9:00 to 9:30 P.M. on the evening of the alleged offense he received a ride in a gold Oldsmobile in which Clarence Moore and Norbert and Wilford Jones were riding. Wilford Jones was sitting in the passenger's side of the front seat and Norbert was in the back seat. Moore was driving. He also identified the safari jacket as the one worn by Norbert Jones. After they dropped him off, he went to his sister's house. At about 10:30 he saw the Oldsmobile in front of the house where the offense had taken place, and he saw some men come out of the house, but they didn't look like Norbert and Wilford Jones. He was a friend of both defendants.
Lisa Jines, the prosecutrix's seven year old sister, testified that a car stopped and asked Giselle if she had any money. The car left and then stopped and they took Giselle. She identified one of the defendants, but the record does not specify which defendant. She had overheard a conversation between Giselle and her mother and she knew that Giselle had identified two men. She also knew that the two men pointed out would be in the court room.
Both defendants testified. Norbert Jones testified that he had met Clarence Moore while he was in the armed forces. On the day of the alleged offense, he had gone to fill out a work application in the morning. After returning home, he left again with Moore at about 2:30 or 3:00 and went to a club for some drinks. They stayed there until five or six or seven, when they went to eat in a chop suey place. He then came home about 8:30 P.M. with Clarence and a girl named Cora whom he had met at the club. He identified the safari jacket as his and the jersey as Wilford's. He met Wilford while near the chop suey place and they all drove to a washrack, where they picked up Robinson. Shortly thereafter, they dropped off both Wilford Jones and Robinson and drove to Norbert's house. After getting into the house, Norbert sat on the sofa and fell asleep. He did not leave the house until the next day. With regard to the line up, he stated that he had not been advised that he had a right to have a lawyer there. Also, he was number 1 in the line up and Wilford was number 3. He heard a girl's voice saying that she couldn't identify who it was and also another voice saying look at number 1 and number 3. Both the prosecutrix and Officer Henderson had denied any such occurrence.
Wilford Jones testified that he had seen Norbert Jones and Clarence Moore at about 6:45 or 7:00 P.M. on the night of the alleged offense. No one else was in the car. They picked him up and drove to the washrack, where they picked up Robinson. They dropped off Robinson and one block later dropped off Wilford, who was going to his girl friend's house. He stayed there until 8:00 P.M. and got a ride home from his brother-in-law. Wilford denied that he had a social disease and he denied the conversation with Officer Russell. He also denied wearing the jersey on the night in question. He testified that he arrived home about 8:15 or 8:30 P.M. and remained at home, going to bed at about 9:00 or 9:15 P.M. He also said that he had not been advised that he had a right to counsel at the line up. He reiterated what Norbert had said about the prosecutrix's identification.
On Norbert's behalf, his mother testified that she especially remembered that night because of his drunken spectacle in front of the other children. She testified that he had gone to sleep on the couch and had remained there until his sister came down to get him to go to bed. This testimony was substantiated by Norbert's sister and two brothers.
On Wilford's behalf, his mother, sister, brother, and a neighbor testified that he had returned home early in the evening and that he had not left home the rest of the night. His mother also testified that she had left the house where the alleged offense occurred approximately one month before the occurrence, that he had been wearing a black cashmere coat on that night, and that the jersey had been at the cleaners. His sister and brother testified that his brother-in-law had dropped off Wilford at the house.
Reverend Mathew Roberson testified that he lived next to the Jines family and that at about 9:00 or 9:30 on the night of the alleged occurrence, after returning home from visiting his wife at the hospital, he heard a commotion from the Jines residence. There were a bunch of white males and the girls were screaming and fighting. The males were fighting the girls. After one car left, some males pushed the prosecutrix into a beige car and sped away. She was hollering frightfully to her younger sister. He called the police, but no one came. He waited until about 11:30 when he went up and fell asleep.
Finally, James Harley testified on cross-examination that on the night of the alleged offense Clarence Moore and Norbert Jones came in to borrow some money at about 9:00 or 9:30 P.M. while he was at the washrack.
• 3, 4 While it is true that we must exercise a high degree of care in examining the evidence, a "court of review will not reverse a judgment of conviction unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt as to the defendant's guilt". (People v. Richards (1970), 120 Ill. App.2d 313, 256 N.E.2d 475.) Furthermore, "[I]t is the function of the jury to weigh testimony, judge the credibility of witnesses and determine the factual matters in debatable sets of circumstances". (People v. Nicholls (1969), 42 Ill.2d 91, 245 N.E.2d 771.) The evidence in this case is contradictory. There does not appear to be any real question that the rape occurred. Rather, the difficult question is whether there was sufficient evidence from which the jury could properly find that the defendants were the persons who committed the offenses.
• 5 The jury had an opportunity to observe the witnesses as they testified. There was the testimony of the prosecutrix and her sister identifying the defendants and the gold Oldsmobile. Their testimony was corroborated by Officer Henderson, who saw the Oldsmobile and the defendant Wilford Jones. Their testimony was also corroborated to some extent by both Robinson and Harley, who placed the defendants in that car on the evening of the alleged offenses. While there was also contradictory testimony, an examination of the record discloses the circumstantial evidence to be of such weight as to lead to the jury's conclusion of guilt and their choosing to believe the prosecution witnesses. We cannot say that their decision was palpably contrary to the weight of the evidence. Our review of the record reveals that the finding of guilty was sufficiently supported by the evidence.
• 6 Defendant Wilford Jones argues that reversible error was committed by not requiring the court reporter to transcribe the proceedings at the bench between Court and counsel. No objection was made, however, during the trial to the failure to transcribe. Furthermore, in People v. Billingsley (1968), 97 Ill. App.2d 54, 239 N.E.2d 475, the court considered the defendant's argument that the trial court had erred in not transcribing verbatim its admonition on a guilty plea. In that case, the defendant did not argue that he hadn't understood the admonition given. The court held that, where the record shows the defendant was at all critical times represented by an attorney and where the record shows no objection by counsel to the failure to transcribe the proceedings verbatim, the court would not require a verbatim transcript in the absence of a showing of any disability to the defendant. The defendant in the present case claims that the failure to transcribe the proceedings at the bench has handicapped him since he can't determine why the court ruled as it did on objections raised during the trial and that he is being denied effective appellate review thereby. In light of the facts that no objection was made to the failure to transcribe, that the defendant has failed to reveal any authorities for requiring a verbatim transcript, that the defendant failed to allege that any of the trial court's rulings following the unrecorded proceedings were erroneous, we do not find that the trial court erred in failing to require transcription of the proceedings between court and counsel.
• 7 The next issue raised by Wilford Jones is that improper cross-examination of a defense witness constituted prejudicial error. James Harley testified that he had been arrested and charged with the crime for which the defendants were on trial. The defense's theory in calling Harley seems to have been to suggest that, as in Harley's case, the police had charged the wrong man. However, in cross-examination, the following exchange took place:
"Q: Are you on trial for this crime?
Q: Why, no, you are not. They must have checked out your alibi and found out you didn't have anything to do with it and you were released, isn't that right?"
No objection was made to the State's Attorney's statement by the defense. However, the defendant argues that the statement inferred to the jury that Wilford Jones was guilty because he had not been released and was on trial and that his alibi had been checked out and ...