APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 14, 1978.
Defendants David Hayes, Edward Reed and Eddie Birk were indicted for the offenses of rape and armed robbery. (Ill. Rev. Stat. 1971, ch. 38, pars. 11-1, 18-2.) Reed was also charged with deviate sexual assault. (Ill. Rev. Stat. 1971, ch. 38, par. 11-3.) All defendants originally pleaded not guilty. Reed and Birk later pleaded guilty to all charges, except that Reed's plea included a reduced charge of robbery. (Ill. Rev. Stat. 1971, ch. 38, par. 18-1.) They were then sentenced to prison terms of 4 to 8 and 5 to 15 years respectively. *fn1 Following a jury trial, Hayes was found guilty of rape and sentenced to 7 to 30 years in prison. On appeal he contends that his sentence was excessive because (1) it was based upon an unproven allegation of perjury and, (2) it was a punishment for proceeding to trial.
At trial the prosecution called Gloria Echoles as its first witness. She testified that at approximately 10 p.m. on December 22, 1972, she left her apartment on West 72nd Street in order to purchase a package of cigarettes from a nearby tavern. While waiting for traffic to clear she was approached by two strangers. She later learned that their names were Hayes and Reed. Reed pointed a gun at her and told her to continue walking. Hayes took her by the arm and together the two men walked her west on 72nd Street to an alley where two other men later identified as Birk and Norris were waiting. She was forced to pull down her pants with defendant holding her arm and Reed brandishing the gun. She offered the men her coin purse, which was taken by Reed. She was then led to an abandoned two-story building nearby. The men forced the door, entered and took her to the front of the first floor. There, Norris emptied the five or six dollars from her coin purse onto the floor. Reed ordered her to disrobe while defendant continued to hold her arm. Reed then forced her to have intercourse with him and slapped her a number of times as she protested.
She was then taken to the second floor where defendant and Birk had intercourse with her against her will. She then heard a loud noise that sounded like a gunshot and began screaming. The four men ran from the scene and she heard someone order everyone to come downstairs. She screamed, "Don't shoot, I'm up here. She then descended to the first floor, falling down part of the stairway, and was met by a police officer who placed a coat over her shoulders. The police aided her in collecting her belongings from the building and took her home. She was then taken to the hospital for treatment and to the police station. She observed defendant, Birk and Norris at the police station and while seated on a bench Reed entered, causing her to cry out.
Chicago police officers Sidney Sharif and Wilbur Jamison each testified that at approximately 10:30 p.m. on December 22, 1972, they were on patrol when a radio broadcast directed them to the scene. At 1216 West 72nd Place they observed tracks in the snow leading up to the rear door of an abandoned building. They attempted to enter but found the door secured from the inside. As the other responding cars departed, Sharif and Jamison spoke to an unidentified woman, returned to the squad car and drove to the front of the building. They heard a scream and Sharif ran through an adjacent gangway to the rear of the building. He observed Reed emerge and ordered him to halt. When Reed disregarded an order to remove his hand from his pocket, Sharif fired and he fled. Defendant then exited the building and when ordered to halt, ran between two nearby buildings. Sharif alerted his partner to the fleeing suspect and entered the building. As Officer Jamison searched between the buildings, the same or another unknown person approached him and pointed toward a nearby gangway. There he discovered defendant hiding, and arrested him.
Sharif, having entered the building to investigate the screams, heard Echoles yell that her assailants had a gun. Nude and crying, she stumbled down the stairs. The officers placed a coat over her, helped to gather her things, and walked her home.
Defendant, testifying in his own behalf, stated that he had been standing by a mailbox on 72nd Street and Racine with Birk and Reed for about an hour and a half before seeing Echoles. As she was waiting to cross the street, Reed approached her and asked where she was going. Together Reed and Echoles crossed the street. They then returned to where Birk and defendant were standing. As they passed the two men, Reed told them to follow. Defendant and Birk then followed Reed and Echoles through the alley to the abandoned building.
Defendant testified that after the group entered, Echoles lay on a couch on the first floor. Reed had intercourse with her and when they were finished she remained on the couch and invited defendant to have intercourse with her, which he did. When they were through, he called Birk who also had intercourse with her. The fourth man, Norris, declined a subsequent offer of intercourse.
Defendant stated that as Reed was leaving he said that he heard someone at the back door, and everyone began running. Defendant heard someone say "Hold it", followed by gunshots. Reed ran out of the front door and defendant jumped out of a window and ran into a gangway where he remained until seeing the police. Defendant stated that at no time was Echoles slapped or threatened, nor was money taken from her. He explained that the contents of her purse fell on the floor as she arose from the couch. He also stated that she never resisted anyone either verbally or physically and that in his opinion she acted voluntarily.
After closing arguments, the jury found defendant guilty of rape and not guilty of armed robbery.
At the hearing held for sentencing, defendant's attorney indicated that all of the defendants were equally culpable and that neither the facts of the case nor the defendant's past justified ...