APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendants, James J. Hanley and Joseph Trader, were found guilty of attempt rape and were sentenced, respectively, to 1 1/2 to 4 years and 1 to 4 years imprisonment. *fn1 Vernon Peters, who was jointly tried and convicted with defendants, takes no part in this appeal which presents the following issues for review: (1) whether the conduct of the trial court was so prejudicial that they were denied a fair trial; and (2) whether they were proved guilty beyond a reasonable doubt. Trader additionally requests that his sentence be reduced to time served.
In April 1974, Diane Martin and defendants, among others, attended a party in the home of Terry Anderson. Diane testified that at 7:30 that evening she drove her automobile to the home of her boy friend, Mickey, and after picking up other friends they eventually arrived at the Anderson home around 8:45 p.m. Not long after their arrival, Diane drove a girl friend in the group to her home returning to the party at 9:45 p.m. Upon her return, Diane discovered that Mickey had left but was expected back. She entered the house and waited for him for about 30 to 45 minutes. During this interval, as she sat on the couch located in the front room, the defendants and Peters all of whom she knew entered the room.
Trader testified that when Diane returned to the Anderson home she was upset as the result of being followed by an unidentified car after dropping her girl friend off and that, to comfort her, he sat on the couch, put his arm around her, and carried on a conversation with her. Diane stated that she was unsettled because someone had followed her, but that Trader had his arm resting upon the back of the couch rather than around her person. Trader further testified that a distraught Diane announced, "I'd do anything for a bag," and that he had seen her inject heroin into her arm on previous occasions by means of a syringe. Thus, when she voluntarily walked into a bedroom, he, Hanley and Peters followed her. Diane gave a contrary version regarding her entry into the bedroom, namely, that she decided to leave the Anderson home and, after she told the others what to say to Mickey upon his return, she proceeded through a hallway which connected the front room to the kitchen, where the rear entrance was located, and as she passed through the hallway Hanley, Peters, and Trader dragged her into a bedroom.
Trader testified that once in the bedroom Diane willingly laid on the bed and that, while she was kissing Peters, he and Trader pulled down her jeans and panties. He stated that she did not object to any of the physical interaction until Hanley engaged in an act of cunnilingus, at which point she cried out, "Please don't do it. Leave me alone. I don't want to do it." Trader testified that he then left the room, arriving home at 9:50 p.m., which time of arrival was corroborated by the testimony of his mother.
Diane, however, said that she struggled with defendants from the moment she was pulled from the hallway and that her resistance continued throughout the time she and defendants were in the bedroom. She further gave the following account of the events which transpired in the bedroom during a period of approximately 35 minutes. She was pushed down upon the bed in such a manner that she was lying on her back. Her jeans and panties were then pulled down as Peters, who was poised at the upper right hand quadrant of her body, alternately held down her arms and on occasion covered her mouth. She scratched, kicked, and attempted to escape from defendants and, in the course of this activity, broke the plastic dust cover of the stereo turntable which was located in the bedroom. As Hanley put his mouth to her vagina, she scratched him with her fingernails and pulled his hair. Hanley then changed positions and placed his penis into her vagina. He attained penetration for a duration of about two minutes. On cross-examination, she answered that penetration was with his penis and not with his finger. During this time, she continued scratching and kicking and, at one point, while trying to turn away from him, she was struck across the back with a candlestick. When Hanley finally withdrew, she observed Trader masturbating, and he then attempted to insert his penis into her vagina but couldn't because she continually turned her body away from his. Trader repeated his efforts a second time, and Diane again prevented penetration. On cross-examination, she admitted not knowing whether Trader was attempting penetration with his finger or his penis. Thereafter, Peters attempted to insert his penis into her vagina while Trader held her down. When she scratched his face and attempted to escape, he ceased trying to penetrate.
She said that Anderson then entered the bedroom and, after telling Peters to leave, he cautioned her not to notify the police. She dressed and left after Anderson found her car keys. Anderson's version was that he heard a commotion upstairs as if furniture was being moved, listened for a short while, and then went to the first floor, where he found Diane fully clothed and standing in the dining room. After assisting her in looking for her car keys, he saw her leave. During this time, he did not see defendants nor did she say anything about rape to him. However, in a statement given to police on the night in question, he said that Hanley, Peters and Diane were in the bedroom and that he had heard the sound of flopping around on the bed and Diane's pleas for her release.
Diane testified that as she drove away from the Anderson home she saw a friend, Danny Osborne, whom she asked to drive her car because she was upset and had just been raped. She and Osborne testified that they drove around until Diane was reunited with Mickey and her father. Osborne also testified that Diane was crying at the time he first saw her and that she said she had been raped by defendants.
Diane was taken to a hospital, where an examination revealed the absence of spermatozoa. Diane's mother testified that at the hospital she observed imprints on Diane's arms and back which had not been present the day before and that within the next couple of days they turned black and blue. At the hospital, Officers Roach and Nealis observed that Diane's face was swollen and that her arms and legs were bruised. They further testified that when they later visited the Anderson home, they found bedsheets strewn about the bedroom and a broken stereo dust cover on the floor. Officer Nealis also stated that Hanley, when apprehended, admitted only an act of cunnilingus. An assistant State's Attorney testified that Hanley questioned him as to whether such an act could furnish a basis for a charge of rape.
Diane was called in rebuttal and testified that she never used heroin and, in support thereof, she exhibited her arms for viewing.
The trial court found that the State had proved all of the elements of rape beyond a reasonable doubt, with the exception of penetration, and found defendants guilty of attempt rape.
• 1-4 Defendants first contend that the trial court, by its remarks and conduct, displayed a prejudice in favor of the prosecution and against them and their attorneys sufficient to deprive them of a fair trial. We disagree. To afford defendants a fair trial, "the judge [need] not play the part of an owl, merely gazing at the participants and looking wise. He must observe with care and seek to understand the issues and the testimony." (People v. Gaston (1967), 85 Ill. App.2d 403, 408, 229 N.E.2d 404, 406.) In a bench trial, it is the duty of the judge to arrive at his conclusions upon a calm and unbiased consideration of the facts and, while he is a searcher of truth, he may not by his questions or attitude discomfort or confuse the witnesses. (People v. Giacomino (1932), 347 Ill. 523, 180 N.E. 437.) In predicating a claim of reversible error upon the remarks of the trial court made during the course of a bench trial, defendant must show that he had in some fashion been harmed by them. (People v. Nurse (1975), 34 Ill. App.3d 42, 339 N.E.2d 328.) Comments of the trial court which were invited or provoked by defense counsel do not amount to reversible error (People v. Watson (1967), 87 Ill. App.2d 453, 231 N.E.2d 695; People v. Smith (1965), 63 Ill. App.2d 369, 211 N.E.2d 456), and a defendant is not necessarily prejudiced by the court's rebuke of co-defendant's counsel (People v. Johnson (1975), 26 Ill. App.3d 1000, 326 N.E.2d 69). The latitude given the defense during cross-examination is within the discretion of the trial court, and an abuse of that discretion is not shown where the rulings complained of seek merely to eliminate confusion and curtail repetition. (People v. Crenshaw (1959), 15 Ill.2d 458, 155 N.E.2d 599.) In a bench trial, the determination as to the credibility of the witnesses and the weight to be given their testimony is for the trial judge and, prior to the close of all the evidence, he may express his disbelief of the testimony of a witness as long as he does not adversely affect the balance of the witness's testimony. (People v. Faginkrantz (1960), 21 Ill.2d 75, 171 N.E.2d 5.) In his summation, the trial judge may attach great weight to a particular witness where he has given due consideration to all of the evidence. Crenshaw.
Here, defendants complain of the trial court's conduct in the following instances: (1) it chastized the defense for not entering into a stipulation, later refused to allow it to stipulate, and still later attempted to force the defense into a stipulation; (2) it rebuked the defense for not apprising itself prior to trial as to what the testimony would reveal; (3) it accused the defense of playing tricks; (4) it restricted the cross-examination of the complaining witness; (5) its expression of sympathy for the complaining witness exhibited a bias against the defense; and (6) prior to the close of all the evidence, it commented that it ...