APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE W. UNVERZAGT, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The four defendants herein, Martin Trejo, Dana Rainwater, Lawrence Tully and Enrique Flores, were found guilty by a jury of the offense of rape and were sentenced, respectively, to 4-5, 4-6, 4-8 and 4-6 years' imprisonment. They assert on appeal: (1) that they were not proven guilty beyond a reasonable doubt; (2) that the State failed to prove that the offenses occurred in Du Page County and the instructions given assumed that venue had been proven: (3) that the trial court erred in allowing the State to elicit testimony from the prosecutrix about alleged prior criminal conduct of the defendant Tully; and (4) that the trial court erred in not conducting a hearing on the question of whether the jury was contaminated by improper conduct of the bailiff.
The prosecutrix testified that on September 24, 1973, she was a high school student and accepted a date with the defendant Trejo. Trejo arrived at her home with the defendant Flores, whom she barely knew and did not expect. The three parked in the driveway of the home of one Marcello Vega for about one hour and then went to an establishment where the defendant Flores purchased some beer. The three then went to the home of the defendant Tully in Wood Dale where they parked in the driveway and drank beer. Another car arrived and two individuals exited the vehicle and went towards the house. The prosecutrix had exited the car she had arrived in and went behind the building. When she returned, the four defendants were in Trejo's car. The prosecutrix noticed that another car was parked behind the Trejo car, thereby blocking its exit. She entered the Trejo car and then told Trejo "a lot" of times that she wanted to leave. Then, someone suggested that the five individuals enter the car parked behind the Trejo car because the Trejo car lacked a window on the driver's side and it was raining. This was done. The defendant Tully started "talking dirty" to the prosecutrix, saying that he wanted her to have sex with the defendant Trejo. She continued to ask Trejo to take her home but he refused. The defendant Tully then passed a bottle of liquor around. The prosecutrix told Trejo that she didn't want any and he said that she should pretend to drink. She held the bottle to her lips but did not drink. She then exited the car and went into the Trejo car along with Trejo. She repeated her request to Trejo to take her home and started crying. He again refused, saying that he couldn't take her home and that if he had a choice between doing what they wanted him to do, he would rather follow their directions because he didn't want to be in trouble with the others.
The prosecutrix then testified, over objection, that earlier that evening, before the defendants Tully and Rainwater arrived, Trejo had told her that the defendant Tully "was mean, that he had been in prison * * * and that he had weapons in his house." She testified that she was told that Tully had been in prison for murder. The trial judge then instructed the jury to receive this testimony not for the truth of the matters asserted therein but only for the fact, if so found by the jury, that Trejo had told this to the prosecutrix.
Following denial of defense motions for mistrial, the prosecutrix then testified that Trejo left the car and then Tully entered. A struggle ensued in the back seat, the prosecutrix's arms were pinned above her head and someone put his hands through the car window and pulled off her pants. She kept on kicking Tully and pushing him back. She tried to scream but "it wouldn't come out." Tully then had sexual intercourse with her and the prosecutrix fainted. The next thing she remembered was that Tully was not in the car and Rainwater was. She tried to push him back and again tried to scream but could not. The defendant Rainwater then had sexual intercourse with her and she again fainted. The prosecutrix then testified to forcible sexual intercourse by the defendants Flores and Trejo.
The prosecutrix next testified that the next thing she recalled was that she was in a moving car which was also occupied by Trejo and Flores. She put her pants back on and Trejo tried to take them off and put his hands down her pants. At this point, she opened the car door and jumped out of the moving vehicle.
The prosecutrix's mother testified that when she first saw her daughter at the police station, she was crying and yelling and told her that she had been raped. Officer Bender, a policeman with the City of Wood Dale, testified that he arrived at a home in response to a radio report that there was a girl there requesting the police. When the officer arrived, the prosecutrix told him that she had jumped from a speeding car and had been raped. Another police officer also testified that when he arrived in a separate police car, he observed that the prosecutrix appeared to be upset, was sobbing and her clothes were wet and muddy. She told him that she had been raped. The doctor who examined the prosecutrix in the emergency room at Alexian Brothers Hospital in Elk Grove Village testified that the prosecutrix told him that she had been raped.
The defendants Rainwater, Trejo and Flores testified that all four of the defendants had sexual intercourse with the prosecutrix, but that she offered no resistance and consented to the acts. The defendant Tully did not testify.
Defendants first contend that they were not proven guilty beyond a reasonable doubt. In making this contention, defendants argue that "the record is replete with contradictions, falsities and irrational explanations" as to what occurred at the time and place in question. They argue that there was no evidence that any force had been used on the prosecutrix to remain at the scene and point to her testimony that she entered and remained in the Trejo vehicle after demanding that Trejo take her home. They assert that the absence of any tears in the prosecutrix's clothes serves to weaken or destroy her testimony that someone forcibly removed her pants from outside the car. They further point out that the prosecutrix did not scream, even though Tully's house was nearby and a 24-hour restaurant was located across the street.
Defendants also point out that at trial, the prosecutrix admitted that she had not told the truth to Officer Bender and a police matron who was with him at the time when she answered a certain question about the alleged rape. Officer Bender had asked her "did Larry [Tully] enter you sexually?" The prosecutrix responded, "I don't know. I kept blacking out and it did not hurt like my girlfriend said it would the first time, so I don't know."
Defendants further point to the testimony of the examining physician that he found no bleeding, swelling, contusions or abnormalities to the pelvic area of the prosecutrix.
Defendants also argue that the credibility of the prosecutrix was weakened by the fact that she did not sign a complaint against the defendants until 50 days after the incident and this was after Trejo's sister had filed a complaint against her for battery. They also argue that the time frame involved rendered the prosecutrix's testimony unreasonable. According to the defendants, the prosecutrix testified that the first assault upon her began about midnight and the rapes terminated some 4 1/2 hours later. With regard to this last point, it should be noted that the defendant Trejo testified that the defendants Rainwater and Tully arrived at the Tully residence at about 1 a.m. and that he left the residence with the defendant Flores and the prosecutrix at about 3 a.m.
Defendants assert that the testimony of the prosecutrix was also inconsistent as to why she did not exit the Trejo vehicle prior to, or during the alleged rapes. At trial, the prosecutrix testified that there were bushes against the passenger side of the Trejo car which, she thought, would have prevented her from opening the car door. At the preliminary hearing, however, the prosecutrix allegedly testified, although at trial she did not recall having done so, that the bushes were from 6-9 feet from the car.
1 The general rules regarding the quantum of proof required to sustain a conviction for rape and the role of a court in reviewing such a conviction are well established in Illinois. These rules were aptly stated in People v. Collins (1974), ...