APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. SAMUELS, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 18, 1979.
Defendant, Robert L. Olejniczak, Jr., was found guilty by a jury of rape (Ill. Rev. Stat. 1975, ch. 38, par. 11-1(a)) and indecent liberties with a child (Ill. Rev. Stat. 1975, ch. 38, par. 11-4), and was sentenced to 6 to 18 years in the penitentiary for rape. No sentence was entered on the findings as to the indecent liberties charge.
Defendant argues on appeal that (1) he was not proved guilty of rape beyond a reasonable doubt; (2) he was prejudiced by the prosecutor's closing argument; (3) he was denied a fair trial because the trial judge improperly limited his cross-examination of the complainant; (4) he was denied a fair trial because the trial judge permitted the prosecutor to inquire as to defendant's condition at the time of his arrest; (5) he was denied a fair trial because the trial judge failed sua sponte to question the jury to determine whether they had heard or been affected by a statement made; (6) his sentence for rape was excessive; and (7) he was not proved guilty of indecent liberties with a child beyond a reasonable doubt.
Complainant testified that at about 7 p.m. on May 28, 1977, she was riding her bicycle by the corner of Latonia and Churchill Streets in Richton Park. Michael Phelan and Dan Olejniczak, defendant's younger brother, were standing on the corner. Complainant was in school with the boys and had known Michael for approximately three years and Dan for about six months. Michael called to her and she stopped to have a conversation with him.
Complainant was getting back on her bicycle when she saw defendant, Robert Olejniczak, get out of a car. Defendant, whom she had known for about six months, walked over to where she, Michael and Dan were standing. Defendant then picked the lock on her bicycle chain and slipped the chain through one of the belt loops on her blue jeans and also through one of his own belt loops. Defendant immediately locked the chain and, holding the lock in his hand, pulled complainant off the bicycle by tugging on the chain and grabbing her arm.
Defendant and Michael Phelan then dragged her across Latonia Street toward Sauk School, defendant on her left and Michael on her right. She told them to let her go because she was supposed to go home, but defendant said nothing. In front of Sauk School, she saw Brian Alberius, whom she knew, about 1 1/2 blocks away and yelled his name.
Defendant told Michael to check out an abandoned house. Michael did and came back and told defendant that the house was locked and they could not use it. Complainant at this time started struggling with defendant and Michael because she was getting scared and, while struggling, her belt loop with the chain through it broke. She fell and Michael and Dan held her by the arms while defendant put the chain through another of her belt loops.
As the boys dragged her behind the school, complainant again fought to get away and scratched Michael on the arm. She turned to hit defendant, but defendant told her that if she hit him, he would hit her back harder. She was scared and did not hit him. While she struggled, a second belt loop broke and she fell. Michael and Dan held her arms and defendant placed the chain through another belt loop. Complainant at this time told Michael and Dan they were "too young." She was not, she testified, talking about sex when she said this. This was something she said to people when she was nervous. When she said it to people at school, they walked away and she hoped by saying it in this instance, the same thing would occur.
The boys next pulled complainant toward Sauk Trail. There she saw Brian Alberius again in the park about 1 1/2 blocks away and twice she yelled his name. Defendant still held her by the chain with the lock in his hand. She fought as defendant and Michael pulled her across Sauk Trail. She called for help to a police officer at this time, but he did not hear her and drove away.
Complainant struggled again after being dragged across Sauk Trail and tripped over the curb and broke another belt loop. Dan and Michael held her while defendant placed the chain through a different belt loop. They all then went toward the Baptist Church, with complainant having to lean on defendant because they were chained and because her ankle hurt from falling.
Brian Alberius came up to them on his bicycle when they were behind the Baptist Church and told them they were trespassing. Complainant struggled again to get free, and the belt loop with the chain through it broke. She ran, but was grabbed by Dan and Michael, who pulled her toward defendant. She fell and, while she sat on the ground, defendant put the chain through her halter top. Defendant then pulled on the chain and her halter top came open. She asked Michael to help fix it. Defendant told her if she tried to run away again, he would put the chain around the halter and if the halter broke again, no one would fix it.
Brian left at this time and complainant really started to get scared. She and the boys next came to a field behind the Baptist Church. Defendant saw a fort and asked Michael to check it out. Michael came back and said it was perfect. Defendant asked complainant if she wanted to go to the fort or someplace further away. She told defendant she did not want to go anywhere, except home, and that she was allergic to weeds and would be sick if she went through the field to the fort. Defendant answered that he did not care. Defendant at first offered to carry her, but then he and Michael decided to drag her through the field. They did not pull her by the chain this time, because the chain had been put back on her bicycle, which Dan had brought along. She received a cut on her leg while being dragged through the field.
The fort they arrived at, complainant testified, had three sides. On the floor of the fort was a pallet with a mattress on it. Someone immediately knocked her down on the mattress. Michael then got on top of her so she could not get up, while defendant was on one side kissing her, and Dan was on her other side. Dan attempted to unzip her pants, but she fought to get them up. She scratched Michael, who jumped up and told her to "knock it off" because he was getting "cut up." Defendant then asked her how old she was and she told him she was 15. She then asked them to let her go, but defendant said they had to have some fun on a Saturday night and there were no other girls around. She was scared and fought to free herself. Defendant asked her whether she would rather have "them two or me." Complainant answered "neither" and continued to struggle.
Defendant then told Michael and Dan to leave the fort and they did, but they were mad. Defendant next told complainant she could be out of there in 10 minutes if she would have intercourse with him. She answered defendant that she did not want to have intercourse, that she did not approve of it, and that she was having her period.
Defendant began to undress her. She was frightened and tired from fighting and "didn't know what to do anymore." She begged him to stop. Defendant told her that if she did not have intercourse with him when he asked "nicely," he would tell Michael and Dan to come in and they would have intercourse with her without asking. She continued to fight and plead with defendant to stop, but defendant took her pants off and had intercourse with her. Dan and Michael then came into the fort. Complainant panicked, she said, as Dan got on top of her. Dan could do nothing, but then Michael got on her and had intercourse with her. Then Dan got on and he too had intercourse with her, while defendant and Michael left. Afterwards, Dan helped her to get dressed and got her bicycle for her.
At this time, complainant testified, she was scared and did not know if she should ride right home or go to the police station. She decided it would be better to go home, so she rode her bicycle past the police station straight home. When she arrived at her home, she was crying and very upset. She ran inside and yelled for her mother, tripping over a fan. She found her mother and said, "Three guys got me." Her mother responded, "What do you mean three guys got you? They beat you?" Complainant answered, "No, the other." Her mother then told her to go to the bathroom to clean up and calm down, while she called the police. Complainant did not have her sanitary napkin at this time and did not know where it was.
Soon afterwards, complainant stated, the police arrived at her house. After she talked to the police, she went to South Suburban Hospital, where a series of tests were performed on her. She gave the clothes she was wearing to her mother, who gave them to the police.
Complainant further testified that defendant and Michael never hit her and that she had no bruises on her arms, but did have bruises on her back the next day.
Brian Alberius was a witness for the State. He was 18 years old at the time of the trial. Brian testified that around 6:30 p.m. on May 28, 1977, he was in a park on Sauk Trail Street in Richton Park. There he saw complainant, whom he had known for four years, crossing Sauk Trail Street with Michael Phelan, Dan Olejniczak and defendant. Brian was about 500 feet away from them. He noticed that there was a chain through complainant's belt loop and that defendant was holding the chain. He also ...