APPEAL from the Circuit Court of Peoria County; the Hon.
RICHARD E. EAGLETON, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
On October 29, 1974, the defendants, Terry D. Sweeney, Vandal Dorn and Ivan Hines, were indicted along with Jerry Baker and Wayne Young, for the offense of rape (two counts), deviate sexual assault (two counts) and intimidation (two counts). At the time of trial, one count each of rape, deviate sexual assault and intimidation was dismissed due to the absence of one of the two victims. At the same time, and for the same reason all charges against Baker and Young were dismissed. The three remaining defendants were represented by the same retained counsel, Robert H. Kunz.
Following a jury trial in the Circuit Court of Peoria County, Sweeney and Hines were found guilty of rape, deviate sexual assault and intimidation and Dorn was found guilty of rape and deviate sexual assault. Dorn was sentenced to concurrent terms of not less than 7 years nor more than 21 years imprisonment for the two offenses of which he was convicted. Sweeney was sentenced concurrently to terms of imprisonment of not less than 9 years nor more than 27 years for rape and deviate sexual assault and not less than 3 years nor more than 9 years for intimidation. Hines received concurrent sentences of not less than 12 years nor more than 36 years for rape and deviate sexual assault and an additional concurrent sentence of not less than 3 years nor more than 9 years for intimidation.
The three defendants appeal from this adverse determination. However, the appeal of Sweeney is separate from the appeal of Dorn and Hines. This opinion will deal with the issues raised by the defendant Sweeney and those issues raised by Dorn and Hines which coincide with the issues raised by Sweeney. A separate opinion, People v. Dorn (3d Dist. 1977), 46 Ill. App.3d 820, 361 N.E.2d 353, will deal with the other issues raised by the appeal of Dorn and Hines.
The victims of the defendants' acts, and the complaints, were Martha Anderson, also called Martha Anderson Peterson due to her marriage before the trial, and Debbie Waddell. Ms. Waddell did not testify at the trial.
Martha Anderson testified that she and Waddell went to a laundromat on October 20, 1974. On the way, they drove past a house, and Waddell thought that she saw someone whom she recognized as Steve Cole. Subsequently, the two girls walked to this house, which was around the corner from the laundromat, so Waddell could obtain some "speed" (amphetamines) from Cole. The house, located at 1315 Northeast Jefferson in Peoria, apparently was the clubhouse of the Arapahoe Motorcycle Club of which the defendants were members.
When the girls arrived at the house, three men dressed in motorcycle attire were on the front porch. The men indicated that Cole was in the house, and the girls entered. Inside, Anderson said that two men put their arms around Waddell, and one of the men, defendant Hines, poked a pistol into Waddell's side. Then, two or three men forced Waddell into a bedroom where they played with her breasts and tried to take her clothes off. Meanwhile, Anderson was offered a beer, and she sat on the couch in the adjoining livingroom. No one was touching Anderson at the time; but one of the men asked if she wanted to take Waddell's place, and she said no. Anderson said that she didn't think she was "very free to leave." While she waited on the couch, one of three men watching her put his arms around her and grabbed her breasts. Another man, identified as defendant Sweeney, had a long gun which he carried to the front of the house, asked if there were any "pigs" outside, and then moved to the back of the house where Anderson heard the gun discharge. Anderson said that People's Exhibits 1 and 2, long barrelled guns, seized at the house by the police and admitted into evidence over objection, were of the same type she saw in the possession of Sweeney. The police subsequently executed a search warrant and seized these rifles (People's Exhibits 1 and 2) together with some ammunition (People's Exhibit 2A). Prior to the trial, the defense moved to suppress the evidence seized in this search, but the motion was denied. At the trial, all of these exhibits were introduced into evidence over an objection by the defense.
Anderson was on the couch for an hour and could not see what was happening to Waddell, but she heard her friend yelling at the men to quit and also for help. At one time, Sweeney pointed a broomstick between Anderson's legs and said "how would you like that."
Later, one of the men asked Anderson to go into the bedroom with him. She refused, but was told she had "no choice" as she was their "captive". Hines and Sweeney were present during this conversation, and Hines said that "he would get rough if he had to." Anderson said she was scared and went into the bedroom with an unidentified man, not one of the defendants. She engaged in oral sex and intercourse with this man, against her will. When the man finished, Anderson was left alone in the bedroom for about a minute where she saw a door but did not try to escape because she did not realize the door led outside.
Anderson admitted that she never offered any physical resistance to anything which happened to her while she was in the house, and never made any physical attempt to leave, but claimed this was because she was afraid and felt she could not safely make it out of the house. None of her clothing was ripped, and she had no bruises or marks on her when examined at the hospital.
Afterward, Anderson said she had sexual relations with five more men, Dorn being the second man and Hines the third. She did not include Sweeney in this group. According to her testimony, when Dorn entered she had put on her jeans and shoes, but was topless. Dorn said, "Hi, young lady" and laid down. He then said, "Give me some face." He had no weapon, but he pulled her hair and forced her to put his penis in her mouth. The entire episode with Dorn, which Anderson did not resist, lasted about ten minutes, involving oral sex and intercourse. After Dorn finished, Hines told Anderson that he had a knife and that he too wanted "some face" (oral sex). After oral sex and during intercourse, Hines told her that she was "lousy at screwing" and that she "had better do better or he was going to cut her throat." Anderson said she was not screaming, scratching, or struggling when she was with Hines.
Following intercourse with the sixth man, Anderson was again left alone in the bedroom; however, she did not think of leaving through the door because she wasn't dressed yet. Subsequently, two men came to the doorway, and she asked if she could leave but was told by one of the men, not one of the defendants, that she couldn't leave until they were done with Waddell, and was instructed to go to the kitchen, and smoked a cigarette. All three defendants were in the livingroom when a man in the kitchen asked her to return to the bedroom. Hines then came in and told her that she "better get in there." She went with the man and performed oral sex, but the man could not get an erection because he was "speeding too much." Sweeney then interrupted the couple saying, "Hurry up, we want some entertainment," whereupon the man attempting to have intercourse led Anderson into the bedroom in which Waddell was being confined. Both women, who were naked, protested and Waddell was crying. The man who had led her then pushed Anderson onto the bed. Twelve people were in the room, including the defendants and two other females. Eventually, Waddell was told by Hines to "eat" Anderson. The girls asked that they not be made to do this, but Sweeney poured whiskey on Anderson's vagina, and announced "They are sterile now." The girls were required to perform oral sex upon each other while Hines clicked a camera. Anderson also said Hines threatened to "barbeque her baby."
Finally, according to Anderson, after Sweeney threw their clothes at them the girls dressed and went to the bathroom to wash up. While they were in the bathroom, the girls requested their purses. Over a defense objection, Anderson then testified that she looked in her purse and asked for her money back, to which either Hines or Sweeney responded "someone must have stolen it" and they laughed.
Hines asked for Anderson's address, which she gave him, and he wrote it down. Hines then warned Anderson "if she told anybody or the police, he was going to cut her throat, her husband's throat, and her baby's throat." Sweeney was present when Hines gave this warning. The girls departed, in Anderson's words, upset and worn out, going first back to the laundromat and then to Anderson's residence where their boyfriends awaited.
Anderson explained that the girls did not go directly to the police because they "didn't know what to do right at that moment." In addition, they elected not to tell their boyfriends the truth because they were afraid of being beaten. Instead of explaining that they went to and entered the house voluntarily they told their ...