APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Each of the defendants, Raymond Pendleton, Lawrence Samuels, Darryl Turner, Clarence Spann and Charles Brownlow, was indicted for the rape (Ill. Rev. Stat. 1975, ch. 38, par. 11-1) of the complainant. A bench trial was held in the circuit court of Cook County. Following the presentation of all the evidence, a mistrial was declared because of claimed prosecutorial misconduct. Subsequently, after a second bench trial, the defendants were found guilty of rape and each defendant sentenced to a term of imprisonment.
The defendants appeal, *fn1 contending, inter alia, that the second prosecution placed them twice in jeopardy for the same offense in violation of the fifth amendment to the United States Constitution (U.S. Const., amend. V). While admitting that they failed to raise this double jeopardy claim below, either before or during the course of the second trial, the defendants contend that the issue is cognizable under our plain error rule (Ill. Rev. Stat. 1975, ch. 110A, par. 615(a)).
We agree and we reverse the convictions of the defendants.
At the first bench trial which was held in March 1975 before Judge Louis A. Wexler, Wanda Lloyd was called as a witness for the State. Wanda testified that on the night of May 28, 1974, she was at her home with the complainant. They were getting ready to go to a drive-in movie. At approximately 7:30 p.m., Wanda and the complainant were picked up by Thomas Bell and Lawrence Samuels. Thomas Bell's nickname is "Slim Bone" and he was Wanda's boyfriend. Lawrence Samuels' nickname is "Lefty" and he was the complainant's date.
Wanda testified further that the two couples drove to the apartment of Samuels' "aunt," where Samuels apparently was expecting a phone call. Subsequent testimony disclosed that the apartment actually belonged to the mother of Raymond Pendleton. Samuels was a close friend of the Pendleton family and often referred to Pendleton's mother as his "aunt."
Wanda, Bell and the complainant waited outside in the car while Samuels entered the apartment alone. About 20 minutes had elapsed when Samuels returned to the car and informed them that his "aunt" had not yet called. He invited them into the apartment to wait with him. Wanda, Bell and the complainant accepted the invitation.
As the two couples waited in the apartment, an unidentified man "dressed in pink" walked in, sat down and introduced himself. Neither Wanda nor the complainant had seen this man before. A short time later, Charles Brownlow, Clarence Spann, Darryl Turner, and Ronald Powells entered the apartment. After saying "hello" to Brownlow, Wanda and the complainant, they walked into the kitchen where they sat around a table talking. Wanda and the complainant knew each of these men from the neighborhood.
Spann, Turner and Powells exited the apartment shortly before 9 p.m. At approximately 9:05 p.m., Bell and Wanda left the apartment to get some cigarettes and "drinks." When Wanda and Bell returned at approximately 9:45 p.m., the lights in the apartment were off. Wanda knocked on the door and called out the complainant's name. A man "in pink" opened the apartment door about an inch and said the complainant was not there. The door was then closed. When Wanda knocked again, a voice from inside the apartment said the complainant had left. Wanda insisted that the complainant would not have left without her.
When no further response was forthcoming from the apartment, Wanda and Bell walked away. Wanda asserted that she and Bell then sat in their car, which was parked near the apartment building, and argued for approximately 20-25 minutes about where the complainant might be. Bell eventually exited the car and told Wanda "he was going to carry the drinks to the people in the apartment." Wanda waited in the car for about 30-40 minutes. When Bell later returned, he and Wanda began arguing again about where the complainant might be. Wanda said she knew the complainant was in the apartment and that Bell should "go get her." Bell left the car but returned later, alone. After insisting that the complainant was in the apartment, Wanda again told Bell that he should "get her out of there." Bell returned to the apartment yet a third time and returned a short time later with the complainant and Charles Brownlow.
Wanda noticed that the complainant had scratches on her face and arms, and "her jaw was kind of pinkish." The complainant was crying and told Wanda she had been raped by Clarence Spann, Darryl Turner, Ronald Powells, Raymond Pendleton, and Charles Brownlow. Wanda then saw Spann, Turner, Powells and Pendleton leaving the apartment.
Bell informed Wanda and the complainant that his car was out of gas. Wanda asked Spann if he could give them a lift to the "Three Corners" liquor tavern. Spann agreed. The complainant, Wanda and Spann sat in the front seat of the car, while Brownlow, Turner and Powells sat in the rear seat. When they arrived at "Three Corners," Wanda telephoned and talked to her mother. Wanda and the complainant then walked, with Brownlow, to Wanda's home. During this short walk, the complainant accused Brownlow of raping her. When they reached Wanda's home, Wanda told her mother that the complainant had been raped. Wanda's mother called the complainant's mother and informed her of the incident. Wanda then walked the complainant home and the complainant's mother then called the police.
The State called Delores Ryan, a policewoman with the City of Chicago, as its next witness. She testified that on the night of May 28, 1974, she received a radio message to proceed to a certain location and conduct an investigation as to an alleged rape incident. She arrived at the complainant's house and talked to the complainant's mother. Ms. Ryan observed scratches on the complainant's face and arms and a bruise "apparently on her cheek." In contrast to the five names the complainant had furnished Wanda earlier, the complainant gave Ms. Ryan the nicknames of only three possible offenders: (1) "Lefty" (Lawrence Samuels); (2) "D.T." (Darryl Turner); and (3) "Country" (Raymond Pendleton).
On the way to the hospital, the complainant pointed out to Ms. Ryan the apartment where the alleged rape occurred. The complainant was then transported to the hospital, and at that time the officers staked out the apartment where the alleged rape took place. Some time thereafter, Ms. Ryan received a call at the hospital informing her that some suspects had been taken into custody. Ms. Ryan and the complainant later proceeded to the 51st District police station where a lineup was conducted.
The State called the complainant as its next witness. The complainant substantially corroborated Wanda's earlier testimony about what transpired the night of May 28, 1974. The complainant stated further that after Bell and Wanda left the apartment to get some cigarettes and "drinks," Samuels called the complainant into the kitchen. At this point, Spann, Turner, Powells and Pendleton re-entered the apartment. Samuels took the complainant into the bathroom and said, "I want you to go out the window and come back, because these dudes are going to rip you off." After completing this statement, Samuels walked out of the bathroom.
The complainant followed Samuels and told him she wanted to leave. As she walked through the living room toward the door, she noticed Pendleton rolling a bed out of a nearby closet. The complainant tried to open the apartment door but it was locked. Samuels was "fooling around" with the lock when suddenly the lights went out. Somebody grabbed the complainant and threw her to the floor. She was crying and screaming. She asked Samuels to help her, "but he just backed away." When she screamed again, somebody hit her on the right cheek and told her to shut up. Somebody then pulled her pants down.
The complainant heard a male voice say: "I'm first." She identified the voice as belonging to Ronald Powells. After Powells had sexual intercourse with her, somebody picked her up off the floor and placed her on the bed. A second man then had intercourse with her. She did not know who that second man was. A number of other unidentified men "then took turns."
After the lights went out, the complainant was unaware if anyone left the apartment. However, she did recall hearing "some dude" enter the apartment. She testified that somebody asked him if he wanted a turn and he replied that "he didn't want to go to jail for nothing like that."
The State then attempted to elicit testimony from the complainant which would identify those men who had sexual intercourse with her.
"[Prosecutor]: Do you know if anyone in that room did anything to you"
[Defense Counsel]: Judge, I object * * *.
[Prosecutor]: While you were on the bed with your pants down, what happened to you. Go into that instead
The Witness: Each one of them had sexual intercourse with me.
[Prosecutor]: Q. Do you know in what order they had sexual intercourse with you?
[Defense Counsel]: She stated she doesn't know.
The Court: Let her answer.
The Witness: Well, after I think after the second one had sexual intercourse, someone went in the washroom and turned the light on and the light was shining off the kitchen into the living room.
[Prosecutor]: Q. Did you see anything then?
A. Yes, I could see a little bit.
A. I could see each one of them.
Q. What could you see each one of these dudes doing?
A. Some was sitting on the couch, some were in the kitchen.
A. They were talking to each other.
Q. What else was happening, what were you doing?
A. I was just laying on the bed and somebody was having sexual intercourse with me.
Q. Do you know who that was?
A. It was between Charly Brown [Charles Brownlow] and D.T. [Darryl Turner], I don't know.
[Defense Counsel]: I object to that, ask it be stricken.
The Court: I will strike it if she doesn't know who it was.
[Prosecutor]: Q. Could you see anyone come over to the bed where you were?
[Defense Counsel]: Your Honor
The Court: She may answer.
[Prosecutor]: Q. After the light was turned on?
The Court: With the light in the bathroom giving you light to see the people there, could you see anyone getting on top of you at that time?
The Court: All right, go ahead.
[Prosecutor]: Q. Who could you ...