APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT L. GAGEN, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
The defendant-appellant was indicted for the crimes of rape and aggravated kidnapping, and he was tried before a jury. After being found guilty of both charges, a sentence of from 20 to 60 years was imposed for rape. No sentence was imposed on the aggravated kidnapping charge.
On appeal the defendant contends that he was denied effective assistance of counsel, he was improperly convicted of two offenses arising from the same conduct, and his sentence was excessive.
The basis of defendant's claim concerning the competency of counsel is that counsel failed to offer an instruction to the jury on the defense of compulsion even though the defendant testified that he was forced by another person to aid in the commission of the crime. The alleged incompetence of appointed counsel will not require reversal unless the attorney demonstrates "actual incompetence * * * as reflected by the manner of carrying out his duties as a trial attorney and * * * substantial prejudice results therefrom, without which the outcome would probably have been different." People v. Gill, 54 Ill.2d 357, 363-64.
A complete examination of the record is necessary to determine whether there was sufficient evidence supporting the defense of compulsion and whether the outcome would probably have been different if such an instruction had been offered.
The prosecutrix was 17 years old and a senior in high school. She testified that the following events took place when she left her home on January 29, 1973. About 8:30 P.M. she walked through her yard and onto a parking lot near a shopping center which was her destination. A car stopped in the parking lot, and one person got out of the car, put a gun to her head and said, "Get in the car and don't scream or I'll shoot you." She and the man with the gun got into the back seat, and a second individual drove the car. Her head was forced onto the floor, and several minutes later she was struck on the head with the gun. The gunman instructed the driver as to directions. After about 15 or 20 minutes the car was stopped, and one of the individuals found a rag that was applied to her head to stop the bleeding. A few minutes later both men raped her in the car with the driver of the car, who was called Melvin by the gunman, being the first to perform the act. Although her face was concealed part of the time, she was able to see somewhat and also able to distinguish one of the men from the other. After driving a short distance, the individual called Melvin pushed her out of the car and he then got out and told her that there was a police station down the street. He then ran off. She went to a nearby house for help and was then taken to her own home. Later she was taken to a hospital by her family. She viewed a police line-up about 2 weeks later at which time she identified defendant as one of the men who raped her.
On cross-examination, the prosecutrix stated that the defendant never had a weapon; that he found the rag for her head to stop the bleeding; that she saw the defendant when he reentered the car and the dome light went on; that she was certain that both men had intercourse with her; that after the rape, it was defendant who got out of the car and guided her in the direction of the police station.
The only other witness to testify for the prosecution was Kenneth McCoy, an East St. Louis police officer. He identified People's Exhibit No. 1 as a statement by the defendant made 2 weeks after the incident to McCoy and Sergeant Morrison of the East St. Louis Police Department. The statement was then read in open court, and it confirmed the prosecutrix's testimony with the exception that the defendant denied having intercourse with the prosecutrix. The defendant also told McCoy that his companion raped the prosecutrix in the back seat while the car was moving.
The testimony of McCoy indicated that defendant never told him that he may have been under duress or coercion during the evening in question. McCoy also identified defendant's Exhibit No. 1 as a police report which included a statement made to the police by the prosecutrix. The report stated that the prosecutrix was raped by a man with a gun.
The defendant was the only witness to testify during his case-in-chief. He stated that he was 17 years old and on the evening in question was riding with his companion in his car. He claimed that he objected to his companion's suggestion that they rape the prosecutrix. His version of the incident was substantially the same facts as included in People's Exhibit No. 1, the statement made by the defendant to the police. The defendant denied having sexual intercourse with the prosecutrix, and he also stated that his companion was pointing the gun at him when he, the companion, raped the prosecutrix.
As a rebuttal witness, McCoy testified that the defendant never indicated to him that he, the defendant, was forced against his will to do anything on the night in question. Bruce Morrison, a sergeant with the East St. Louis Police Department, testified on rebuttal that he was present when the defendant made his statement to McCoy and that defendant never stated he was forced unwillingly to participate in the incident in question. There is no question that an instruction regarding a defense should be given when requested even where there is only "very slight evidence" supporting the defendant's theory. (People v. Kucala, 7 Ill. App.3d 1029; People v. Keating, 2 Ill. App.3d 884.) In light of defendant's testimony, a compulsion instruction should have been given if one had been tendered.
• 1 The defense of the defendant was based on compulsion, as indicated by defense counsel's opening and closing statements, and the fact that defendant admitted that he aided his companion in the perpetration of the offense. Counsel's failure to tender an instruction was inexcusable. However, an examination of the record reveals that counsel's failure to offer a compulsion instruction did not constitute incompetence. Defense counsel prior to trial filed three motions to suppress, and five witnesses were examined on these motions. The cross-examination of the prosecutrix had to be a delicate task under the circumstances, and defense counsel accomplished it with more than average skill. A study of the record and the transcript of proceedings demonstrates to this court that defense counsel was well prepared and provided the defendant with very competent representation.
Counsel's failure to tender an instruction on the defense of compulsion did not result in prejudice "without which the outcome would probably have been different." The jury was instructed on the theory of accountability as follows:
"A person is responsible for the conduct of another person when, either before or during the commission of a crime and with the intent to promote or facilitate the commission of a crime, he knowingly solicits, aids, abets, agrees or attempts to aid the other ...