APPEAL from the Circuit Court of Jackson County; the Hon.
PEYTON H. KUNCE, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, Rudolph L. Lucien, was charged by information with the offenses of rape, unlawful restraint, aggravated assault and unlawful use of weapons (Ill. Rev. Stat. 1975, ch. 38, pars. 11-1, 10-3, 12-2(a)(1) and 24-1(a)(4)). Following a jury trial in the circuit court of Jackson County, defendant was found guilty of aggravated assault and unlawful use of weapons and not guilty of rape and unlawful restraint. The trial court imposed sentence upon the unlawful use of weapons offense only, sentence being 364 days imprisonment and payment of a $1,000 fine and the costs of the proceedings. The trial court further ordered that this term of imprisonment be served consecutive to sentences imposed upon prior offenses arising out of Cook County.
In this appeal, defendant contends that he was denied a fair trial as a result of questioning by the prosecutor concerning his post-arrest silence and the court's granting, without proper foundation, a motion for leave to call a court's witness, that the evidence is not of the clear and convincing quality required to sustain a conviction, that the verdicts are legally inconsistent and that he was denied his right to a speedy trial.
On October 21, 1976, Maria Radosta stood at the edge of Carbondale, attempting to "hitch" a ride to Makanda. For several days, Radosta, a resident of Champaign, Illinois, had been visiting a friend in Makanda, staying in her trailer home. On October 21, Radosta shopped in various stores in Carbondale. When she was ready to return to Makanda, she called her friend's trailer to seek a ride. After calls over several hours went unanswered, she decided to hitchhike back.
According to Radosta, a black male in a dark colored car stopped for her. This man was the defendant. He was dressed well, wearing a light beige sports coat. He agreed to give her a ride to Makanda and indicated that he lived somewhere south on Route 51, past the SIU Arena. Their conversation was quite friendly. At some point defendant told Ms. Radosta that his name was Rudy.
After traveling south of town some distance, the defendant turned right onto a side road. Radosta told him it was the wrong road. When defendant persisted in driving on, she asked him to turn around. He agreed to do so but shortly thereafter turned onto another road which he claimed was the "scenic route." This road actually made a dead-end at Cedar Lake. At the road's end, defendant stopped the car and used electronic controls on the driver's door to close the car's windows.
Defendant removed a small handgun from the inside of his coat and pointed it at Radosta's head, saying, "Get in the back and take off your clothes." The gun had two barrels, one on top of the other. When Radosta pleaded with him to take her to Makanda, defendant threatened to blow her head off and leave her lying out there. Ms. Radosta then talked defendant into putting the gun away. She got into the back seat and disrobed. Defendant also got in the back seat. He pulled down his trousers and told Radosta twice to "eat him," which she refused to do. He then got on top of her and commenced to have intercourse with her. Defendant stopped before reaching a climax because he felt she was "cold" and "frigid." He told Radosta to get dressed, that he would take her where she wanted to go.
On the ride to Makanda, defendant became friendly once again, treating the incident as a joke, saying that the gun was a toy and that he felt if Radosta had gotten excited she would have enjoyed having intercourse with him. During the drive, Radosta declined an offer to let her look at the gun and refused several requests of the defendant that she go out to dinner with him or allow him to see her again. When they reached Makanda, defendant stopped the car before several storefronts. He indicated that he wished to talk further. They then talked for about one-half hour. The conversation centered around their respective attitudes towards drugs, but defendant continued to ask her out. During the time they were talking, a proprietor of one of the stores who was a recent acquaintance of Radosta, walked past the car. Radosta, feeling things were under control, merely said hello to him. Shortly thereafter she left the car and returned to her friend's trailer. After taking a shower, Radosta began to tell her friend about the incident but did so without detail since other people visiting in the trailer were listening also.
On the following day, Radosta returned home to Champaign as she had earlier planned to do. She did not report the incident to the police because she was confused, scared and did not wish to think about the incident any further. On Sunday, October 31, Radosta returned to Carbondale in the company of two lawyers who helped persuade her to report the incident to the police, which she did on November 1, 1976.
On that day the Carbondale police arrested defendant and pursuant to a search warrant seized several items described by Ms. Radosta, including a .22-caliber derringer found under the mattress of the bed in defendant's apartment. At trial, the complainant identified a key chain, a tassel and a necklace as being items that had been in the defendant's car. She also identified a black zippered briefcase as being similar to one that had been on the floorboard of defendant's car. Radosta further testified that the gun looked like the one defendant threatened her with and that two photographs admitted at trial accurately depicted the exterior and interior of the car in which the alleged crimes took place.
Bill Jezzard, proprietor of the Rainmaker Shop in Makanda, testified for the State that on October 21 he saw Ms. Radosta in the passenger seat of a car that looked like the one shown in the photographic exhibits. The car was parked before the storefronts. Jezzard said hello and Radosta responded in kind in a "cracked" voice. She was sitting against the door with her arms folded in front of her and seemed very upset, looking as if she had been crying. He could tell that a black man was in the driver's seat but could not see him clearly because of the tinted glass of the windshield and the glare of the sun. When Jezzard came back down from his residence above his shop in five to ten minutes, the car was gone.
The defendant testified in his own behalf and gave a markedly different account of the instant encounter. He testified that on the afternoon in question he was driving a black, 1972 Dodge Charger, heading for his residence in the Shamrock Apartments. While stopped at a traffic signal, Ms. Radosta approached his car and asked if she could have a ride if he were headed south. Defendant agreed. In order to clear a space for her to sit, he moved various items off the front seat, including a toy derringer intended for his nephew, which he had just purchased. This toy gun was admitted at trial as defendant's exhibit number 2. Ms. Radosta saw the gun and asked if it were real. Defendant did not have any real weapons in the car.
When defendant stopped at a store known as Arnold's Market, Ms. Radosta asked him if he would take her to Makanda if she gave him gas money. She further said that Makanda was only a few miles down Route 51. He agreed. While driving south, defendant noticed that Ms. Radosta was acting strangely, making sharp, erratic movements and speaking incoherently. When he inquired what was wrong, she said that she had taken some LSD. During further conversation, she related that she and her boyfriend had recently made a cross-country trip in his van, that they had taken LSD during the trip and that she had parted company with him in Carbondale three days earlier because of sexual advances he had made towards her.
The defendant testified that he made a wrong turn while on the way to Makanda but that he immediately turned around and got back on course. When he got to Makanda, he parked the car in front of a store called Makanda Java. He and Ms. Radosta then talked for an hour. During this time, there were many people around; Ms. Radosta waved at three of them. At no time did he make any sexual advances towards Ms. Radosta.
Defendant further testified that he took the toy gun, defendant's exhibit number 2, to Chicago the following weekend and left it there. The only time he had ever seen the real gun discovered at his apartment was when his "cousin" Ethel ...