Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Rock Island
County; the Hon. John L. Poole, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Defendants Ronald Dean Hood and David Roseman were indicted for the crimes of rape, indecent liberties with a child, and aggravated assault. At the first trial in the circuit court of Rock Island County, the jury was unable to return a verdict. Following a subsequent jury trial, both defendants were convicted of rape and indecent liberties with a child, and defendant Hood was, additionally, convicted of aggravated assault. Both defendants were sentenced to terms of 8 to 25 years in the penitentiary for the crime of rape. The convictions were affirmed by the appellate court, but each sentence was reduced to a term of 4 to 12 years. (People v. Hood, 11 Ill. App.3d 329.) We granted leave to appeal. Defendants now assert that they were denied their right to a preliminary hearing, and that generally there was insufficient proof as a matter of law to sustain the convictions.
In the latter part of the evening of November 6, 1970, the 15-year-old victim of these crimes was returning to the apartment of a friend following a dance. As she was walking alone on the sidewalk, she was asked if she would like a ride by two young men in a car, later identified by her as the defendants. Though the men were unknown to her, they knew a friend of hers, and following a brief conversation and repeated invitations she accepted their offer. The victim was driven to a deserted road near an abandoned house. There the victim stated that she attempted to escape but was struck several times by Hood, and, following threats with a knife by him, she was forced into the back seat of the car where she was raped by both defendants. She was also forced to submit to an act of cunnilingus, which was the basis for the indecent liberties charge.
The men dropped the victim off a few houses away from her friend's apartment. She then ran to the apartment, where she was told through a closed door that her friend was not at home. As she turned to leave, a girl friend who had accompanied her earlier in the evening called to her from a vacant apartment downstairs where a few young people had gathered. The victim, disheveled and distraught, was questioned as to what had happened. She stated she was unable to tell them for fear her assailants would kill her. She then started to cry, became hysterical and unable to speak. After regaining some control, she informed them that she had been raped and related the events of the incident, describing both her assailants and the vehicle driven by them.
From the descriptions the victim gave of the assailants and their car, it was suggested that one might be Hood. The victim explained that her parents and the police were not told of the crime until the following Monday, November 9, 1970, because she feared that if the police arrested only one assailant the other would kill her. During this interim, the victim was able to learn that Roseman could have been the remaining assailant. On Tuesday she made a photographic identification of Roseman and chose three pictures as resembling Hood, although she was unable to positively identify Hood because the pictures were old.
Defendants were arrested November 12, 1970, and arraigned the following day. The matter was continued until November 24 without mention in the record that a preliminary hearing was to be held. On November 19, defense counsel notified the State's Attorney that the defendants would appear November 24 for the purpose of a preliminary hearing. Defense counsel subpoenaed witnesses to testify at the hearing. On November 24 the State's Attorney appeared, but requested and received a continuance until December 10. Defense counsel protested the continuance and offered to prove that the witnesses subpoenaed were informed by the State's Attorney's office earlier that morning that the hearing was continued. Counsel argued that a preliminary hearing could be conducted that day because there was sufficient time and the docket was not extensive. He further argued that the continuance would place the date of the hearing beyond the date that the grand jury was scheduled to meet. It was asserted that the sole reason for the continuance was to delay the preliminary hearing until the grand jury would convene and indict the defendants, thereby depriving them of their right to such a hearing. While the record does not contain information concerning the term of the grand jury, we are advised that the parties do not dispute that the grand jury was not in session from November 14 to December 8, 1970.
Defendants moved for an immediate preliminary hearing on two separate occasions, November 27 and December 3, 1970, but the trial judge denied the motion. On December 10, 1970, the grand jury returned indictments against the defendants. No preliminary hearing was ever conducted. Defendants motioned on December 18, 1970, for a dismissal of the indictment for failure to conduct a preliminary hearing. The motion was denied.
During the trial the judge permitted two witnesses who were present in the downstairs apartment to testify that the victim told them she had been raped, but refused to allow them to relate the details of her statement. One of these witnesses testified that only two or three minutes passed during which they questioned the victim before she stated she had been raped. However, on cross-examination the victim responded affirmatively to defense counsel's specific question that she had been in the apartment 5 or 10 minutes before she explained what had happened.
No medical evidence was introduced at trial to support the victim's claim of having been raped. The victim testified on cross-examination that though she was a virgin prior to the attack there was no vaginal bleeding following the rape. However, one of the victim's girl friends who accompanied her home from the apartment and stayed the night with her testified that she saw the victim's underpants which were "stiff and everything." The underpants were not introduced in evidence at trial, nor were they examined by the police, since the victim had thrown them away the night following the assault.
Defendants called as a witness a laboratory analyst from the Illinois Bureau of Identification. He testified that he examined hairs taken from the vehicle identified by the victim as driven by defendants and found no comparison with hairs taken from the victim. He also found no blood or seminal stains on portions of the back seat which had been given to him for examination.
An alibi defense was proffered by each defendant to the effect that they, their wives and another couple were at Roseman's house at the time the victim was attacked. In support of this defense Carlos Martinez testified that around 9 p.m. on November 6, he, Reuben Sierra and Robert Schild hitchhiked to Roseman's house to borrow Hood's car. Hood was not there when they arrived, but appeared shortly thereafter with Roseman. Hood gave them permission to use the car but told them to return it around midnight. The three teenagers then drove the car to Schild's house, where Terry Schild joined them. The four then drove around town in Hood's automobile. As they were driving they saw the victim walking alone and asked if she wanted a ride. She answered yes. Robert Schild and the victim were acquainted with each other from high school, and the victim apparently knew the other three teenage boys in the car. The victim sat in the back seat with Robert Schild while the other three sat in the front. They drove to a "parking" area on a deserted road where Robert Schild and the victim "made out." About an hour and a half later, the victim asked to be taken to a friend's apartment, and they dropped her off about one block from this location as she requested. The four teenagers then drove to Roseman's house where they returned the car to Hood. Martinez added that when they picked up the victim she looked as if she had been drinking. Martinez, however, was unable to remember where the car had been parked during the time that the victim "made out" with Robert Schild.
While Robert Schild had been subpoenaed as a defense witness, he appeared as a rebuttal witness for the State and repudiated his testimony given at the first trial which had been substantially similar to that given by Martinez. Schild now stated that on the evening of November 6 he and Reuben Sierra went to the same dance as did the victim, though he did not see her there or at any other time during that evening. He completely denied the veracity of Martinez' testimony.
The defense, in an apparent attempt to impeach this testimony, offered a transcript of Schild's prior testimony as well as a statement he had given to defense counsel. Schild, however, reasserted that his present testimony was true and that the possibility that he might be prosecuted for perjury induced him to tell the truth. Schild further testified that he had been offered a bribe of $1000 by Hood to testify as he did at the first trial. He stated that Martinez and Reuben Sierra were offered bribes of $300 each and that his brother, Terry, originally wanted nothing to do with it, but then agreed to go along. Although he knew that Hood had no money and no assets he said that he was told he and the others would be paid with the money Hood would receive from a false arrest lawsuit against the county following his acquittal.
Robert Schild admitted that a "slight threat" had been made to him by the State's Attorney. Apparently Schild had been charged with an auto theft, and when he was to appear in court the State's Attorney asked him if he would sign an affidavit admitting his perjury at the first trial. When Schild refused, the State's Attorney told him he would be in "a lot of trouble." Schild also stated his father, who "hated" Hood, had also indicated that he would tell where his son actually was the night of November 6, thereby exposing the perjury. The record ...