Appeal from the Circuit Court of Cook County, County
Department, Criminal Division; the Hon. ARCHIBALD J. CAREY, JR.,
Judge, presiding. Judgments affirmed.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 17, 1968.
This is a consolidated appeal from two separate convictions. In case number 52,313 the defendant, Dennis Cardenas, was charged with having committed the crime of forcible rape on December 2, 1965. In case number 52,312 he was charged with having committed the crime of attempt rape on December 20, 1965.
We first address ourselves to case number 52,313. This case was called to trial on December 27, 1966. The defendant pleaded not guilty, and signed a jury waiver. After a trial, the trial judge found him guilty of rape as charged in the indictment. On the morning of January 20, 1967, judgment was entered on the finding of guilty. At this time the defendant's motions for a new trial, in arrest of judgment, and for probation were denied, and the court sentenced him to the State Penitentiary for a term of not less than two and not more than ten years.
In number 52,313 the defendant contends, on appeal, that his identification by the prosecutrix as the party who had raped her was so unsatisfactory that his guilt was not established beyond a reasonable doubt, and therefore, his conviction on the rape charge should be reversed.
Janice June Pettigrew, the prosecutrix, testified that on December 2, 1965, she sent four of her children off to school. Then, at about 8:30 in the morning, she climbed back into bed with her two-year-old baby beside her. She fell asleep immediately. Shortly thereafter, between 8:30 a.m. and 9:00 a.m., the prosecutrix was awakened by a man placing his hand on her leg. Upon awakening, the prosecutrix discovered a man wearing a navy blue stocking cap standing by the side of her bed. She further testified that this man was the defendant. He immediately covered her face with a pajama top and climbed on to the bed, placing himself on top of the prosecutrix. During the ensuing struggle, Mrs. Pettigrew managed to pull the pajama top off her face, and she looked at the defendant for about two minutes. The defendant then struck her in the face. According to the prosecutrix, the defendant called out, "Dave, I'm having trouble," and he told her that if she didn't cooperate "Dave" would kill her baby. At this point Mrs. Pettigrew stopped struggling and allowed the defendant to have sexual intercourse with her. After the defendant had finished, the prosecutrix removed the pajama top from her face and observed him for another minute and a half before he left.
Mrs Pettigrew testified that light was coming into the bedroom from a window which was located above the foot of the bed; the shade had been drawn on the window, but it didn't cover the window completely. At the time of the incident it was daylight outside, and light was also coming into the bedroom from the windows in the living room.
The prosecutrix further testified that she went to the police station three times following the incident to view suspects. On two occasions there were lineups and on one visit the police showed her a single suspect. During these visits to the police station Mrs. Pettigrew was shown seven suspects, and she failed to identify any of them as being the man who had raped her. Subsequently, on December 20, 1965, at around 5:30 in the morning, a police officer arrived at Mrs. Pettigrew's apartment and asked her if she would like to view a suspect. She said that she would; whereupon the defendant was brought into her apartment, and she immediately identified him as the man who had raped her.
Police Officer George Carlson testified that he received a radio call on his police car radio shortly after nine o'clock a.m. on December 2, 1965, directing him to proceed to the apartment of the prosecutrix. After he arrived, Mrs. Pettigrew identified her assailant as being a white man, about twenty-five years of age, wearing a brown suede jacket and a blue stocking cap.
Police Sergeant John Mahoney testified that he arrested the defendant during the early morning hours of December 20, 1965. He further testified that the defendant, at the time of his arrest, was wearing "a navy watch-type knit cap . . . it was navy blue."
The defendant took the stand and denied that he had raped the prosecutrix. He stated that at the time of the incident in question he was at home. He further testified that when the police arrested him on December 20th, they told him that they knew he was the man they were after because Mrs. Pettigrew had been raped by a man with a scar on his face. He testified that although he owned a navy blue stocking cap he didn't believe he was wearing it at the time he was arrested.
The defendant's wife testified that on the morning of December 2, 1965, the defendant was at home asleep at the time during which the rape took place. She further testified that her husband wore a navy blue stocking cap until November of 1965 when she threw it away, and that he never purchased another one.
The defendant contends that the foregoing evidence did not contain facts sufficiently probative of his identity as the party who raped the prosecutrix to establish his guilt of the offense charged beyond a reasonable doubt. In support of his contention he argues: (1) that the light in the room where the rape took place was inadequate for the prosecutrix to properly identify her assailant; (2) that the prosecutrix failed to mention to the police in identifying her attacker the presence of a facial scar which the defendant had at the time of the occurrence; (3) that he had a reasonable alibi; and (4) that his identification was substantially weakened due to the fact that the prosecutrix did not pick him out of a lineup held at a police station.
The identification of an accused as the perpetrator of a particular crime will be sustained on appeal on the basis of a positive identification made by a single credible witness. People v. Guido, 25 Ill.2d 204, 184 N.E.2d 585. Questions as to the credibility and weight of testimony and the inference to be drawn therefrom by the trier of fact are, in a case tried without a jury, best left for resolution to the trial judge, and we will not substitute our judgment for his determinations in this regard unless it appears ...