APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant, Alan Montgomery, was found guilty of rape and deviate sexual assault and was sentenced concurrently to a term of 4 to 8 years on each conviction. On appeal, defendant contends that he was not proven guilty of the two offenses beyond a reasonable doubt; that he was denied the right to fully cross-examine a State's witness; that hearsay testimony was erroneously admitted into evidence; and that the transfer statute which allowed defendant to be tried as an adult rather than a juvenile was unconstitutional.
The complaint testified that on June 20, 1970, she was 12 years old and living with her parents. At 10 P.M. she was sent by her mother to the store. On her way to the store, she saw defendant who began to follow and talk to her. She reached the store, purchased the items, but as she started home defendant began chasing her. Defendant caught her, placed a sharp object against her throat and demanded that she come with him. He made her cross the street where another young male, whom she identified as Johnny Wilson, was waiting. With the sharp object still at her throat, defendant took her to the basement of a nearby abandoned building where he forced complainant to remove her clothes. Defendant then raped her and subjected her to an act of oral intercourse. During these events, complainant felt a sharp object touch her, and at some point, defendant cut off a patch of her hair. Defendant threatened to kill her if she "hollered" and repeatedly told her that his friend had a gun. Johnny Wilson, who was waiting in the next room until defendant was finished, then forced her to engage in the same two sexual acts. Before leaving complainant alone in the abandoned basement, defendant blindfolded her with a sleeve cut from her sweater, and told her to remain there until he returned. After approximately 5 minutes, complainant, while crying and attempting to find her way out of the dark basement, heard her mother calling her.
On cross-examination the witness testified that although she felt a sharp object on several occasions, she never actually saw a knife or other weapon; that defendant had struck her in the face before the act of intercourse; that during the act of intercourse, she cried out and was made to kiss defendant; but that during the entire episode, she did not offer any physical resistance, and made no attempt to escape.
The mother of complainant testified that at 10:30 P.M. on June 20, 1970, she, concerned because her daughter had not returned from the store, went to look for her. While standing outside, she observed Johnny Wilson running past her house. She proceeded to call out her daughter's name, and eventually found her daughter naked, screaming and crying in the basement of the abandoned building. In response to her question, "How did you get there?," the girl cried out that she had been raped by two boys. After giving the girl a coat to cover herself, the mother directed her other daughter to call the police. The witness noticed that a portion of her daughter's hair had been cut off. Subsequently, the witness obtained the girl's clothing which had been left in the building; she noticed that a sleeve had been cut from her daughter's sweater.
The two police officers, Robert Mason and Leo Dorrociak, who arrested the defendant a few hours after the alleged rape, testified that initially defendant denied raping anyone but that when he was confronted with the complaining witness he admitted having intercourse with her, but that it was with her consent.
Ghodratolla Javherr, a physician who examined complainant shortly after the incident, testified that a vaginal smear positively indicated the presence of sperm. A small vaginal bruise was observed, but there were no other bruises or marks on the girl's body.
The final prosecution witness was Johnny Wilson, the defendant's accomplice in the incident. He testified that as a result of his participation in the events of that night, he pled guilty in Juvenile Division to the charge of battery and served 8 months with the Illinois Youth Commission and was on parole at the time of the trial. *fn1 He stated that on the evening in question he and defendant were walking around and defendant said he wanted to have sex. He told how defendant grabbed the girl and put a 10-inch butcher knife around her neck. All three went to the basement of the abandoned building where, knife in hand, defendant demanded that she remove her clothes. Defendant cut the girl's bra off with his knife and warned her that she "better act right." Defendant had vaginal and oral intercourse with complainant. Wilson testified that during the act of intercourse, complainant was crying, but eventually put her arms around defendant, kissed him, and did not resist or fight back. After the witness then subjected the girl to the same acts, defendant blindfolded her with some kind of cloth. Upon leaving the building, the witness saw the victim's mother.
On cross-examination, the witness testified that both he and defendant were members of the Black P. Stone Nation, a Chicago street gang; and that his brother, Dennis Wilson, had fought with defendant 2 years ago.
Alan Montgomery, called as a witness on his own behalf, testified that he was with three other friends on the night in question. Johnny Wilson was not among them. He stated that he knew complainant prior to the incident, having met her at the home of a mutual friend a few years ago. While walking down the street with his companions, complainant had initiated a conversation and offered to buy some liquor for him. She gave $5 to Alan who got a "winehead" to make the purchase. All five proceeded to the basement to drink it.
The witness stated that he and complainant drank a little and discussed their mutual friend. They were alone in one room and he started "sweet-talking" and kissing her. After asking her if she "was game" and receiving an affirmative answer, he had intercourse with her. According to the defendant, Johnny Wilson showed up while the intercourse was in progress. The witness stated that Wilson did not have sexual relations with the girl, and that he himself did not engage in oral intercourse with her. When he and complainant were done, he offered to walk her home, but she was afraid her mother would be looking for her so she left on her own. After she walked out, the witness discovered that she had left her bag so he sent Johnny Wilson after her with it. Defendant denied having a knife on the night of June 20, 1970, or forcing complainant to have intercourse with him.
Ollie McGee, the defendant's grandfather, testified that defendant came home before 10:30 on the night of June 20, 1970.
We address ourselves first to defendant's contention that the State failed to establish beyond a reasonable doubt that the acts of intercourse were forcible and against the will of the complaining witness. The gist of defendant's argument is that there is an absence of resistance on the part of complainant to demonstrate that the act was clearly against her will. In support thereof, defendant points out that complainant did not cry out when forcibly taken ...