APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
COLLINS, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendants who had been jointly tried with a third defendant, Augustine Soto (who is not a party to this appeal) were convicted of rape and conspiracy with the intent to commit the offense of aggravated kidnapping. (Ill. Rev. Stat. 1967, ch. 38, pars. 10-2 and 8-2.) They were each sentenced to concurrent terms of 8 to 20 years and 4 to 8 years respectively. The sole contention on appeal is whether defendants were denied a fair trial by the failure of the court to give a cautionary instruction to the jury during the trial that certain testimony should not be considered in determining the guilt of defendants.
Defendants do not challenge the sufficiency of the evidence. Thus, we need only recite those portions of the extensive record relating to their contention.
It appears that the complaining witness, a 17-year-old girl, testified that on July 21, 1969, she left work at a drive-in restaurant and went to a nearby bus stop. While waiting for the bus, a car driven by Soto, in which Barrera was a passenger, stopped and the latter asked whether she wanted a ride. She declined, and the car was driven away, but it returned several minutes later and she again declined a ride. She then began to walk to the next bus stop to avoid a further confrontation, but the Soto vehicle returned. Barrera exited, displayed a knife, and ordered her into the car. After driving around the area for awhile, they eventually went to a building subsequently identified as 2702 South Normal Avenue, in Chicago. She was taken to the basement of this building, which had the name "Latin Kings" painted on the door. A number of other young men were there, and when Soto and Barrera said, "Get her down," she was pushed to the ground. While Galvan held her shoulders, some of the others removed her undergarments. She was attacked by about eight individuals, including defendants, during which time several of the attackers were called by nicknames, including Soto, who was addressed as "Augie" and Galvan, who was called "Chico."
After the attacks, she picked up some of her undergarments and left. Barrera and Soto walked with her several blocks and warned her not to call the police. At about 11:30 p.m., she eventually reached a restaurant, where her brother worked. There, her mother and the police were called, and the latter took her to the hospital.
It appears that she returned that evening to the area of the attacks with the police and her mother. They located the building involved, and her underpants were found in a pile of rubble near the basement stairway. The next day she saw Soto's vehicle and obtained the license plate number, which she gave to the police, and they arrested Soto, the defendants, and another individual who were riding in the car. She identified Soto and the defendants after the arrest, but she was uncertain as to the participation of the fourth person in the car.
Both defendants presented alibi defenses. Barrera and the sister of his girl friend testified that he was at his girl friend's house during the time of the attacks. He stated that he was driven there by Ephram Gonzales and the latter's girl friend, Eva Sotomayor.
Galvan testified that he was at the home of his aunt on the evening of the occurrence. The aunt, her teenage daughter, and a young woman who was the mother of his child, corroborated this alibi. They also denied that he was called "Chico." When Galvan had rested his case, and prior to the presentation of the defenses of Soto and Barrera, counsel for defendants asked the court to give a cautionary instruction to the jury that any subsequent evidence offered should not be considered as to defendant Galvan. The following instruction was tendered and refused:
"I told you earlier at the conclusion of all the evidence I would instruct you as to the law. You are now instructed that from this point on until I instruct you further any evidence now heard shall not be considered by you in reaching your verdict as to the defendant Galvan."
Soto then testified that he met the complainant at a drive-in a week before the attack. She asked him whether there were any parties during the following week, and he informed her of several. On the night in question, he played baseball until 9:30 p.m. and then went to a friend's house, where he stayed until about 11 p.m. He had planned to go to a party but wasn't sure of the location, and he went to a park at 27th Street and Normal Avenue to find someone who might know the location of the party. There, he met the complainant, who had a disheveled appearance. They had a brief conversation, but she would not tell him what had happened to her, and he then drove her to the restaurant where her brother worked.
Victor Rodriguez, a witness called by Soto, who lived in the building where the attack occurred, testified that he was outside the building involved on the evening in question and saw a girl matching the complainant's description approach Soto. After a brief conversation, Soto assisted the girl into his car and they drove away. Rodriguez stated he was certain that the date was July 21, 1969, because the following day he commenced work at Spiegel.
In rebuttal, Eva Sotomayor testified for the State that she had never dated Ephram Gonzales and that she had not been in his automobile, as testified to by Barrera. Gonzales subsequently testified in surrebuttal, but did not corroborate Barrera's testimony that he had been driven to his girl friend's home by Gonzales on the evening of the occurrence. In addition, the record discloses that although Barrera's girl friend was present in the court building, she was not called as a witness to substantiate his alibi.
Also in rebuttal, the State called Spiegel's personnel records clerk, who impeached the testimony of Soto's witness, Rodriguez, that he had seen Soto and a girl resembling complainant on the night in question by showing that the latter had not started to work for Spiegel until September 15, 1969, almost two months after the attacks. Then, an assistant State's Attorney and an investigator who had interviewed Rodriguez after he had initially left the stand testified that Rodriguez admitted to them he had lied about seeing Soto and the girl that evening. Rodriguez was then recalled by the State and recanted his prior testimony by stating that he was inside the building that evening and did not see Soto and the girl. He stated he had lied about seeing them, because Soto had asked him to do so, and he feared for his family's safety if he did not.
During the presentation of the State's rebuttal testimony, defendants' counsel made numerous objections that it was hearsay as to defendants and urged that a cautionary instruction be given, as ...