APPEAL from the Circuit Court of Rock Island County; the Hon.
JOHN L. POOLE, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendants Ronald Dean Hood and David Roseman appeal from an 8 to 25 year sentence imposed by the circuit court of Rock Island County following a jury trial in which defendant Hood was found guilty of rape, indecent liberties with a child and aggravated assault, and Roseman was found guilty of rape and indecent liberties.
On appeal in this court, defendants seek reversal of the convictions and assert as grounds: (1) that there was no preliminary hearing and they were thereby prejudiced; (2) that proof of guilt of the defendants was insufficient as a matter of law; (3) that hearsay statements of the complaining witness were improperly admitted; and (4) that the prosecution brought out prejudicial testimony, made prejudicial statements to the jury, and brought forth rebuttal testimony which was improperly broad because it duplicated the testimony presented by the prosecution in its case in chief. Defendants also ask for a reduction of their sentences on the ground that such sentences are excessive.
Defendants were arrested on November 12, 1970, and were arraigned on November 13, 1970. The magistrate presiding at the arraignment continued the proceeding until November 24, 1970. Defendants contend that the proceeding was continued for the purpose of holding a preliminary hearing at such time. The State, however, says that the matter was continued without mention, at least in the record, of a preliminary hearing. Docket entries on each of the cases indicate simply that the cases were continued to November 24, 1970.
On November 19, 1970, counsel for defendants notified the State's Attorney that a preliminary hearing would be held on November 24, 1970, at 10:00 A.M. Defense counsel had subpoenaed witnesses to testify at that hearing. On November 24, 1970, the State's Attorney appeared at the appointed time but he requested and received a continuance. Defendants were present and apparently ready to proceed with the preliminary hearing. They protested the continuance and offered to prove that prior to the scheduled hearing the State's Attorney had instructed the subpoenaed witnesses not to appear. The court then suggested that his calendar had been pre-empted for November 24, 1970, and, despite defense counsel's objections, the court then scheduled the preliminary hearing to be held on December 10, 1970. Defense counsel assert that the court was aware that the grand jury would meet prior to such date.
On December 3 and December 7, 1970, defense counsel moved for an immediate preliminary hearing but the circuit judge denied that motion. On December 10, 1970, approximately 4 weeks after defendants were arrested, the grand jury returned indictments for the offenses referred to. The State's Attorney asserted that this eliminated the need for a preliminary hearing. On December 18, 1970, counsel for defendant moved to dismiss the indictments on the ground that defendants had not received a preliminary hearing. This motion was denied. It is contended by defendants on appeal that the deprivation of the preliminary hearing prevented them from ascertaining the existence of a witness who might have testified in the favor of defendants.
• 1 In chapter 38, section 109-1 of 1969 Illinois Revised Statutes, it is provided that a person arrested shall be taken "without unnecessary delay" before the judge; that the judge, among other duties, shall hold a preliminary hearing, where he has no jurisdiction to try the offense. In section 111-2(a) of said chapter, it is expressly provided that if a defendant is charged with the commission of a felony and there is no waiver of prosecution by indictment with a concurrence by the State, a preliminary hearing or examination upon complaint or information shall be conducted in the manner provided by the Act unless defendant waives such hearing or examination or "unless a bill of indictment on the same felony charge is returned in open court prior to such hearing or examination." (Emphasis added.) It is thus apparent from the language of such section that no preliminary hearing is required if an indictment had been returned.
With a view to "due process" considerations, it is clear that there is no evidence of any overreaching by the State or the trial court or that any adverse evidence was elicited by the State from the defendants during the interval between the time of defendants' arrest and the return of the indictment. A four-week interval intervened between arrest and indictment. We find nothing in the record to justify the conclusion that there was a violation of the rights of defendants in not conducting a preliminary hearing during such period since a four-week period is not an unreasonable delay under the circumstances as shown in the record.
• 2 Defendants contend that Coleman v. Alabama, 399 U.S. 1, and People v. Adams, 46 Ill.2d 200, 263 N.E.2d 490 (affirmed, 406 U.S. 278) establish that a preliminary hearing is a "critical" stage of a criminal prosecution and, therefore, is guaranteed to the accused as a matter of constitutional right. Neither of the cases referred to gives consideration to the question of a preliminary hearing, with respect to whether such hearing is necessarily required. These cases simply support a narrower principle, to the effect that if a preliminary hearing is held, it constitutes a critical stage of a criminal prosecution and that an indigent accused has a constitutional right to have counsel represent him at the hearing. As a matter of fact, in the Adams case, the Illinois Supreme Court, citing section 111-2 of chapter 38 of the Illinois Revised Statutes, clearly recognized that a preliminary hearing is "not a required step in the process of prosecution, as a prosecutor may seek an indictment from the grand jury, thereby eliminating the proceeding." See also: People v. Petruso, 35 Ill.2d 578, 221 N.E.2d 276; People v. Gonzales, 125 Ill. App.2d 225, 260 N.E.2d 234.
It is also apparent from the record that no prejudice actually resulted to defendants. Defendants' only allegation of such prejudice is that if it had not been for the delay they might have been able to learn of the existence and identity of a girl who purportedly last was present with complaining witness before the occurrence of the rapes and other acts complained of. Shortly after the indictment was returned, this witness left the jurisdiction, and neither the State nor the defendants have been able to locate her. Defendants' defense was based on an alibi and on allegations likewise that complaining witness was in an inebriated and emotionally overwrought state when she last was observed prior to the alleged attack. Defendants contend that the missing girl could have been a material witness in their favor. The arguments, however, overlook the fact that the State never knew the girl's identity.
Defendants next contend that there is insufficient proof as a matter of law that defendants were guilty of the charge of rape or indecent liberties. They also argue that the complaining witness's testimony was erroneously admitted into evidence and that it is hearsay and not an exception to the hearsay rule. They rely on the authority of People v. Taylor, 48 Ill.2d 91, 268 N.E.2d 865. We believe, however, that the case of People v. Damen, 28 Ill.2d 464, is a precedent more applicable under the facts of the instant case.
The challenged hearsay statement occurred, following the alleged attack when the 15-year-old complaining witness went directly to an apartment where her friends were gathered. She was disheveled and distraught and in response to a friend's question concerning her appearance and what had happened she said, "Oh, you guys, you guys", and then said she could not tell them for fear her assaulters would harm her. She then broke down and started to cry, became hysterical and was unable to speak. She then said she had been raped. This statement and conversation lasted two to three minutes. The complaining witness said on cross-examination that she had been in the presence of her friends for five or ten minutes before she told them what had happened. The court permitted the witnesses to testify that the complainant told them she had been raped but refused to allow them to state the details of her statement.
• 3, 4 Statements made by an alleged victim of a rape are controlled by a different evidentiary rule than would apply in other cases. In People v. Vaughn, 390 Ill. 360, where a complaint was made by a prosecutrix in a rape case, the court concluded that even if it was not a part of the so-called res gestae it may be proven by third persons as an exception to the hearsay rule if such complaint was made as soon as practicable and without inconsistent delay. The corroborative statements are deemed to constitute an exception to the hearsay rule and that the purpose of the exception is to permit the complaining witness to dispel the negative inference which could arise if the witnesses were not permitted to state that the complainant told them she had been raped. See People v. Damen, 28 Ill.2d 464, 193 N.E.2d 25.
• 5, 6 In the cause before us, the complaining witness was 15 years of age and not a mature adult. The spontaneity of her declaration and its admissibility must be analyzed within the context of her age and of the purpose of the exception. We believe that it was properly admitted as a corroborative statement. (People v. Damen, 28 Ill.2d 464, 193 N.E.2d 25.) The trial judge properly determined within his discretion that in the circumstances of the case before us with a complainant of tender age who had been hysterical and apparently unable to speak before she made her statement, that the statement was properly corroborative and sufficiently spontaneous and, therefore, admissible at least as a corroborating statement. In any event, it would not have constituted harmful error here because the complainant herself was present in court and was subjected to cross-examination and testified that she made the statement. (People v. Smith, 25 Ill.2d 219, 184 N.E.2d 841.) Even in absence of the challenged statement, sufficient corroboration existed from complainant's physical appearance when she returned to the apartment and further from the testimony of another witness that she accompanied plaintiff to her home following the attack and personally saw complainant's underpants which were "stiff and everything." We see no reversible error in the procedure. The testimony alone of the complainant would be sufficient if her testimony is clear and convincing. People v. Vaughn, 390 Ill. 360.
• 7 It is asserted by defendants that the complainant's testimony was unbelievable as a matter of law. They contend that although the complainant testified she was a virgin prior to the assault there was no evidence of vaginal bleeding following the attack. They also argue there was no evidence of seminal stains on the rear seat of the automobile where the attack allegedly took place. No authority is cited in support of the contention relating to vaginal bleeding and since the implications of such lack of bleeding are not so universally known that we might take judicial notice of them, we will not presume to alter the jury's implicit determination that lack of bleeding did not make complainant's testimony unbelievable. The testimony as to lack of seminal stains on a portion of the rear seat of the automobile was testimony which was for the jury to weigh in determining the guilt or innocence of defendants. Similar testimony with respect to whether the underpants were placed in the hamper or discarded was also a matter for the jury to weigh in determining guilt or innocence. We also conclude that the fact that no medical evidence was presented to show that complaining witness had been raped does not cast reasonable doubt as a matter of law upon the testimony of complainant. Since defendants brought this matter to the attention of the jury at the trial, it, also, was for the jury to consider in weighing the guilt or innocence of defendants.
• 8 Defendants also complain they were prejudiced by improper remarks made by the prosecutor and by the court's reception of rebuttal testimony on behalf of the State which covered matters already presented in its case in chief. Defendants complained specifically of the use of the words "mug shot" in reference to a photograph of one defendant and of the use by the prosecutor of the words "rape partners" or "cohorts" in reference to the defendants. From our review of the record it is apparent that such references were more inadvertent and isolated than studied or repetitive. The words "mug shot" were spoken by the complaining witness and not the prosecutor. We, therefore, find no basis for concluding that such language constituted reversible error. The repetition in rebuttal of a portion of matters shown in the case in chief is permissible in the discretion of the court if the rebuttal evidence tends to explain, repel, contradict, or disprove the defense. (People v. Daugherty, 43 Ill.2d 251, 253 N.E.2d 389.) We do not find that there was any abuse of discretion in this regard which would justify reversal in this cause.
The final request made by defendants is that their sentences be reduced because they are excessive. The court sentenced each defendant to serve a term of imprisonment of not less than 8 nor more than 25 years for the offenses of rape. While it is clear that defendants were properly convicted of the offense of rape, the facts and circumstances in the case lead us to the conclusion that the sentences should be modified. Although this circumstance does not excuse the subsequent conduct of defendants, the record shows that the complaining witness entered the automobile occupied by defendants voluntarily. We particularly note from the record that mitigating evidence was presented on behalf of each defendant. It is shown that Hood is not only married and the father of three children, including a child who is blind and mentally retarded, all of whom he had been supporting, but he also helped, as well, to support the children of his widowed mother-in-law. Neither Hood nor Roseman had a record of any serious prior conviction. Roseman had supported, as best he could, his wife and her children by a prior marriage. He had saved a child from drowning and on another occasion had prevented a disaster in a boating accident.
• 9, 10 The Illinois Supreme Court in the case of People v. Chupich, 53 Ill.2d 572, established that a case has not been finally adjudicated until the last direct appeal has been decided or when the time for filing such appeal has run. Under the Illinois Code of Corrections, chapter 38, § 1008-2-4, it is specified that if the offense being prosecuted has not reached "a final adjudication" then for the purpose of sentencing, the sentences under the Code of Corrections apply if they are less than under the prior law. In view of the Chupich precedent and the language of the Code of Corrections, we have determined that the modification of sentence in this cause should follow recommendations contained in the Code of Corrections. The sentences imposed upon defendants in this cause, therefore, are modified to sentences of not less than 4 years nor more than 12 years (plus 5 years of parole).
We, therefore, affirm the convictions and modify the sentences of both defendants in this cause to a term of not less than 4 years nor more than 12 years (plus 5 years parole).
Affirmed and sentences modified.
Mr. PRESIDING JUSTICE STOUDER dissenting:
I disagree with the majority of the court: I believe the trial court's action regarding the preliminary hearing was erroneous, prejudicial and constituted reversible error. Furthermore, I am not satisfied the evidence is sufficient to establish the guilt of the defendants beyond a reasonable doubt.
With respect to the preliminary hearing, it seems to me that the issue presented on this appeal has a somewhat different dimension than that discussed in the majority opinion. The basic issue presented by this appeal is whether the defendants were entitled to a preliminary hearing and if so whether the action of the prosecution and trial court erroneously prevented the defendants from having such a hearing.
The defendants first appeared in court on November 13, 1970, having been arrested pursuant to complaint filed November 10, 1970. According to the docket entry, the court explained their rights and continued the case until November 24. Whether defendants were advised on November 13 of their right to have a preliminary hearing or whether the case was continued for that ...