APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Defendants Charles Terry, Anthony Mitchell, and Sylvester Jones were indicted for robbery, rape, and aggravated kidnapping. (Ill. Rev. Stat. 1973, ch. 38, pars. 18-1, 11-1, and 10-2.) In a bench trial, each defendant was found guilty as charged. They were sentenced to six to 18 years in the penitentiary. On appeal defendants contend that: (1) they were not proved guilty of the offense of rape, since the State did not prove that the prosecutrix had intercourse with a person who was not her spouse; (2) they were not proved guilty of the offense of aggravated kidnapping, since rape was not committed; (3) they were deprived of their right to the effective assistance of counsel; (4) their aggravated kidnapping convictions must be reversed because the aggravated kidnapping was committed as a means to committing the rape; (5) the common law record indicating three concurrent sentences is erroneous and must be corrected since the report of proceedings indicates that only a single sentence was imposed on each defendant. We affirm.
Before trial, defense counsel made a "motion to quash the indictment on the basis of collateral estoppel" and the motion was denied. The following relevant evidence was heard.
The prosecutrix testified that when the incident took place she was 40 years old and the mother of three children whose ages were 24 years, 23 years, and 14 years. On March 30, 1974, she had dinner and a couple of drinks with a friend in Adolph's Restaurant, an establishment in Chicago, Illinois. She was walking, at 2:30 or 3 a.m., on St. Clair Street after leaving Michigan Avenue. She had left the restaurant alone, walked south on Michigan Avenue, turned left on Erie Street, and then right on St. Clair Street. She was grabbed by two men and dragged into an automobile. In court, she identified defendant Jones as one of the men who grabbed her. She could not remember who the other man was, but she further testified that he resembled defendant Jones.
The prosecutrix testified that the automobile was parked in the right hand lane away from the curb. In the front seat were two other men; in court, she identified defendant Mitchell as one of those men. When she was grabbed on the street, she started screaming and lost her purse and a shoe. She was placed in the back seat of the automobile with her head and upper body lying on the knees of the two men in the back seat and her legs and knees on the floor. Her face was held down in the knees of Terry Mitchell, the "juvenile" seated on the left side of the back seat. While "at the trial," an adjudicatory hearing held in Juvenile Court, she learned the name of the "juvenile."
Once in the automobile, the prosecutrix began screaming and one of the men in the back seat told her to stop screaming or they would kill her. She further testified that she stopped screaming. "What do you want?" the prosecutrix asked. No answer was given. She then asked where they were taking her and the juvenile replied that they were letting her out on Lake Shore Drive. During the trip, her wristwatch and diamond engagement ring were taken. She recalled that the ring was taken by the man sitting on the left side of the back seat and the watch was taken by the man sitting next to him.
When the automobile stopped, she got out along with the four men in the automobile. Although she identified Anthony Mitchell, Sylvester Jones, and Terry Mitchell as three of those men, she could not positively identify the fourth. She remembered that he wore an earring and a turban, stood approximately 5'6" and had a build which was "slight, thin and tall." The four men gathered around her after getting out of the automobile. As the prosecutrix looked around, she noted, "This isn't Lake Shore Drive." However, no one gave a response. She further testified that she then started crying and said, "Please take me back." One of the men (she could not recall who) said, "Let's get her in the house." She was then grabbed by two of the men and she again started screaming. The prosecutrix recalled defendant Mitchell and defendant Jones standing to her right and the "juvenile" standing to her left. She was grabbed by either arm, but she did not know which of the men grabbed her. "Grab her legs," someone then said. The prosecutrix did not know who made that statement. Also, since her eyes were closed and she was still screaming, she did not know who grabbed her legs. At that point, her arms were still being held.
She went on to testify that she was carried by her legs and arms. Because she was still screaming, someone said, "Shut her mouth," but she did not know who said it. She then felt someone put his hand over her mouth, however she did not know whose hand it was. In addition, she testified that she stiffened her body and went limp, then she was dropped and began screaming again. She was dropped three or four times.
The prosecutrix further testified that she was taken into a house with two floors. She was taken into an empty kitchen on the first floor and then up some stairs. While being taken up the stairs, she began screaming again, grabbed the railing and turned her face toward the railing to keep her mouth from being covered. The prosecutrix could not see who was doing what, because her face was toward the wall. As she tried to turn her face to the wall, someone pulled her hair. At the top of the stairs, she was taken into a room with no furniture. No lights were on in the room, but the room had a window. Light was shining through the window. In the room, two of the men argued over her engagement ring, one of whom was defendant Mitchell, the driver of the automobile.
She wore slacks, pantyhose and underpants which were "ripped off" by the "juvenile"; her sweater and shirt were left on her body. She was placed on the floor by the "juvenile" and one of the other men, whose identity she did not know. Once on the floor, one of the men, which one it was she did not know, held her arms. The "juvenile" then put his penis in her vagina. She heard a police siren and saw the other two men run to the window. Blue lights flashed through the room and one of the men said, "The police are here." Hence, the two men off to the side and the man holding her arms scattered and began running from the room. Upon coming into the room, the police found the prosecutrix and Terry Mitchell, the "juvenile." The prosecutrix then had on her sweater and shirt, however she wore no underpants, pantyhose or slacks. "Freeze," a policeman ordered. The prosecutrix jumped up against a wall and then she was put in another room with the police officers. In that room, she became startled and screamed and she had her arms around a policeman.
From the house the police officers took the prosecutrix to Cook County Hospital, where she was examined by a doctor and her head and spine were X-rayed. She was then transported to a police station, where she saw the four men and identified them as being the abductors. Also, she indicated which man was the rapist. The prosecutrix testified that she had never been, and was not then, married to any of the defendants. Defendant Terry took her keys in the automobile, but she felt unable to positively identify any defendant as Terry. She further testified that she did not willingly go to the house with the men.
On cross-examination the prosecutrix testified that defendant Terry was in the back seat of the automobile. He grabbed her wristwatch and said, "let me have that." Since her face was down in the lap of the "juvenile," she was unable to see who was talking. She thought defendant Terry said, "Stop screaming or we will kill you," because the words came from his direction. Throughout the time she was in the automobile, defendant Jones occupied the front passenger seat. At the house, she had no personal contact with defendant Mitchell or Jones. She might have had physical contact with defendant Terry; since her eyes were closed and she was screaming, she could not identify who did what.
Asserting "if there is a defense of consent, we are entitled to go into the question," defense counsel began an inquiry into the marital status of the prosecutrix. She testified that she was not married, but she had been divorced twice. On cross-examination she further testified that she arrived at Adolph's Restaurant between 11:30 and 12 o'clock. She drank alcohol with Mr. and Mrs. McLaughlin and saw a gentleman named Robert at Adolph's bar. She had gone to Adolph's Restaurant with the McLaughlins from another Rush Street bar whose name she could not remember, where she had something to drink. After the McLaughlins left Adolph's Restaurant, she remained there for approximately an hour and had coffee with Robert. She did not ask Robert to escort her home and she did not call a taxi. Her home was located six or seven blocks away.
After the prosecutrix concluded her testimony, the defense counsel objected to limits placed by the court on the cross-examination of the prosecutrix as to her habits "where it is a case in which as I ...