APPEAL from the Circuit Court of Peoria County; the Hon.
RICHARD E. EAGLETON, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant, Johnnie Hendon, and his brother Raymond Hendon, were indicted for rape. Their cases were consolidated for trial by jury, where Raymond was acquitted and defendant was found guilty. He was sentenced to not less than 4 years nor more than 20 years in the Illinois State Penitentiary. Defendant appeals, contending that the evidence failed to prove that the intercourse was forcible and against the will of the prosecutrix. He also contends that there were improper inferences to a prior criminal record during the trial, and that a mistrial should have been granted due to prejudicial statements made by a prospective juror.
The prosecutrix, who was 18 at the time, testified as follows: On December 9, 1972, shortly before 7 p.m., she left her home in order to make a telephone call at a phone booth near her house. She had a date at 7 p.m. and was going to be picked up at her house at that time. She is quite nearsighted and was not wearing her glasses that evening. As she neared the booth she noticed a car was approaching on her side of the street. She saw the car stop outside the booth but could not recognize the occupants, due to her poor eyesight. The driver told her to come over to the car. When she was very near the car, she realized that she did not know the occupants. She identified Johnnie Hendon as the driver, who got out of the car. He told her his name was Willie Jackson and that they were police detectives looking for three or four girls who had been "messing around with black guys."
She stated that she was not one of those girls, told him she was going to call the police and ran into the phone booth. She then decided that she could escape and left the phone booth without calling the police. Defendant grabbed her by the coat and shoved her against the car. She was frightened and defendant told her to "shut up or else." Defendant then forced her into the car and said he was taking her down to where the police was parked. She kept telling defendant she was not one of the girls he was looking for and repeatedly asked to be let out. Defendant drove up to a house, parked and, holding her arm, took her down some steps into the cellar where three couches were pushed together. Before entering the house, she heard some women arguing inside the house.
She removed her clothes at defendant's demand, and defendant removed his. Defendant then forced her to perform several acts of sexual intercourse and oral sex. She tried to cry out at one point, but he told her to "shut up in a loud and vicious way." When defendant finished, another man whom she identified as Raymond Hendon, came into the room and also forced her to commit several acts of intercourse. Following this, she was told to dress, and then defendant took her out of the cellar and drove her to a street close to her house. She stated that throughout this ordeal she was "scared for my life," she was "scared to death" and "in shock," and that "I did what I was told because of my life, afraid of my life."
She testified that she informed her mother of the rape when she arrived home. She was taken to the hospital where she complained of a pain in the neck. She also stated that she had been a virgin prior to this incident. She stated that she was positive about her identification of Johnnie Hendon because she had been so close to him when they were at the phone booth. However, she readily admitted that she had had difficulties in identifying Raymond Hendon, because of the fact that she did not see his face while in the car, and due to the darkness of the cellar room.
Scott Parnham testified that on December 9, 1972, he was to pick up the prosecutrix at 7 p.m. for a date. Apparently the date had been arranged by a third party. She was not at home when he arrived, and he then drove around looking for her. When he returned to her house about an hour and a half later, the prosecutrix was there. She complained that her stomach hurt and asked him to drive her to her sister's house. They were unable to find her sister at home and then drove to a restaurant where she was supposed to be working. During this half-hour period, the prosecutrix was crying intermittently. After failing to locate her sister, the prosecutrix told Parnham that she had been raped, and he called the police.
A police officer testified that he received a call at about 9:30 p.m. that evening to proceed to the address where the prosecutrix lived. When he arrived, the prosecutrix was sitting on a bed crying, and he drove her to the hospital. There was testimony by another police officer that, when viewing photographs, the prosecutrix's identification of defendant was absolute and positive, but that she had difficulty identifying Raymond Hendon.
A physician testified that he examined the prosecutrix that evening after she told him she had been raped and complained of neck injury. He stated that the vagina showed signs of recent sexual activity. There was also a small tear in the vagina wall and some blood, which, according to the physician, indicated that this was probably her first sexual experience. An x-ray of her neck showed no bone damage, but the physician said this did not rule out soft tissue damage.
Defendant testified that he had met the prosecutrix two weeks previously at a restaurant and talked with her and another girl for an hour and a half. He then met her around 12:30 p.m. on December 9, 1972, and made arrangements to pick her up that night at the phone booth to go to a movie. Instead of going to the movie, they went to his cellar apartment, listened to records and later had sexual intercourse. He stated that the prosecutrix willingly engaged in intercourse with him. On cross-examination, however, he could not remember the other girl's name at the restaurant or any details of the conversation. He also could not remember what movie they had planned to see. When pressed for further details regarding his testimony on direct examination, he stated "I can't remember, I can't hardly remember nothing."
Raymond Hendon denied any involvement in the incident. He stated on direct examination that on December 9, 1972, he and defendant went to a repair shop at 11 a.m., then proceeded to a pool hall and remained there for about three hours. On cross-examination, however, he recanted his testimony, finally stating that maybe this had happened the day before.
Two of the more significant defense witnesses were relatives of defendant who testified that on the evening in question they were picked up by a car in which only defendant and the prosecutrix were riding. One witness stated that the prosecutrix was smiling and said hello and the other said she was not crying. They dropped the prosecutrix off and went to the house of defendant's sister.
Defendant contends that there is insufficient evidence to show nonconsensual intercourse, arguing that the prosecutrix did not resist, did not cry out and did not attempt to escape. He further points out the differences in his testimony from that of the prosecutrix.
The testimony that he gave the prosecutrix an assumed name of "Willie Jackson" and stated that he was a police detective is not consistent with his statement that the prosecutrix had agreed to go out with him ...