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People v. Brown

OPINION FILED MARCH 8, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KEITH BROWN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. James F. Quetsch, Judge, presiding.

JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 12, 1984.

Defendant, Keith Brown, was convicted of the offense of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1), following a jury trial. Judgment was entered on the jury verdict and he was subsequently sentenced to 10 years' imprisonment. Defendant has appealed.

The State's case against the defendant rested primarily on the testimony of the complaining witness, Karen Moravek. The substance of her testimony was that on May 23, 1981, at about 5:40 a.m., a man whom she later identified as the defendant attacked her in her house and forced her to have intercourse. Defendant's defense, in addition to attempting to show inconsistencies in the victim's testimony, consisted of the testimony of an alibi witness, his sister, and of his own testimony.

On appeal, defendant first contends that the testimony of the complaining witness, Karen Moravek, was so riddled with inconsistencies and weaknesses that the State did not satisfy its burden of proving the defendant guilty beyond a reasonable doubt.

The defendant argues that Moravek's credibility was severely damaged by her failure to immediately tell the police the suspected identity of her assailant when she was initially questioned at her home. The record indicates that, upon the limited inquiry of Officer Diane Carlson, Moravek generally described her attacker as a black male, 6 feet 1 inch, 170 pounds, without facial hair and approximately 19 years old, and having a short afro hairstyle. However, she did not mention to the officer that she believed the attacker to be Keith Brown, a co-worker of her husband's whom she had previously met several months before. In addition, at one point, defense counsel elicited from Moravek that her first statement to the assailant was "who are you." Defendant argues that if Moravek was certain of defendant's identity she would not have asked this question.

The defendant proceeds to challenge the lack of specificity in Moravek's description of defendant. In particular, defendant notes that the witness was mistaken by five years in defendant's age, two inches in his height, 30 odd pounds in weight, and she labeled defendant's car a white LeMans with a creme top when in fact Keith Brown's automobile is a white tan-topped Monte Carlo with opera windows and paint primer spots. Finally, defendant attempts to impeach Moravek by contending that she made certain inconsistent remarks as to the exact sequence of events on the morning of the rape.

Defendant concludes that since Moravek's testimony is not clear and convincing, corroboration was necessary to sustain defendant's conviction. (People v. Rodriquez (1978), 58 Ill. App.3d 775, 778; People v. Kepler (1966), 76 Ill. App.2d 135, 140-41.) According to the defendant, that corroboration is absent in the State's case. A police fingerprinting of a mirror and telephone which the attacker allegedly grabbed while at the victim's home was inconclusive. Defendant also argues that the hair, blood and saliva samples taken from Moravek and Brown were likewise inconclusive. While these tests do indicate that defendant could have been the rapist, Brown contends that the statistics represent mere probabilities and are insufficient to corroborate Moravek's testimony.

In rebuttal, the State properly recognizes that if positive and credible, a complainant's testimony alone is sufficient to sustain a rape conviction. (People v. Osborn (1977), 53 Ill. App.3d 312, 323, cert. denied (1978), 439 U.S. 837, 58 L.Ed.2d 134, 99 S.Ct. 122.) Minor variances are mere discrepancies which go only to the issue of credibility (People v. Barr (1980), 85 Ill. App.3d 992), and credibility is a function to be judged by the trier of fact (People v. Payton (1980), 84 Ill. App.3d 181).

While there were undoubtedly some minor discrepancies in Moravek's testimony, the basic and critical elements of her testimony were consistently repeated, and apparently believed, throughout the trial court proceedings. Each of the purported weaknesses in Moravek's testimony was successfully explained and accounted for at trial. For example, the fact that Moravek did not tell Officer Carlson the suspected identity of her attacker was related to her initial reluctance at hastily accusing a friend of her husband. Further, her physical description of defendant, although general in detail, was sufficiently accurate to coincide with defendant's appearance. Obviously a frightened and emotionally distraught victim of a violent crime may not be able to describe her assailant with the exactitude demanded by inquisitive trial attorneys. The fact that a witness does not describe the specific physical features of her attacker does not destroy the credibility of that witness. (People v. Stanford (1975), 34 Ill. App.3d 485, 488-89; People v. Utinans (1977), 55 Ill. App.3d 306, 314-15.) Minor discrepancies in height, weight, age, etcetera are matters which a jury might rightfully consider in assessing the credibility of a certain witness, but they are not generally a basis for the reversal of a conviction. See People v. Barr (1980), 85 Ill. App.3d 992; People v. Payton (1980), 84 Ill. App.3d 181.

Moravek's misdescription of the defendant's auto may likewise be excused on the basis that both her description and Brown's actual vehicle were mid-1970's, white tan-topped, American mid-sized cars. We do not expect ordinary citizens to be experts in making fine distinctions between the many vehicles Detroit produces. See People v. Adkins (1963), 29 Ill.2d 332.

Finally, the corroborating physical evidence gleaned from police laboratory tests was considered by the trial court to be more illuminating than the defendant suggests. In particular, the vaginal swab taken from Moravek revealed that the rapist was a secretor with a type B blood, PBM type 2-1. Only 4.9% of the black population has these characteristics, and defendant matched these results. While mere physical probabilities might be insufficient alone to establish guilt beyond a reasonable doubt, they provide helpful corroboration to Moravek's eyewitness testimony as to the crime in question.

• 1 Courts> of review are charged with the duty of carefully examining the evidence in rape cases, and reversing a conviction if the evidence is insufficient to establish a defendant's guilt beyond a reasonable doubt; however, in discharging this duty, an appellate court cannot encroach upon the function of the trier of fact to weigh credibility and assess the evidence presented. Consequently a reversal is permissible only where the evidence is so palpably contrary to a guilty determination, or so unreasonable, improbable, or unsatisfactory that it raises a reasonable doubt of defendant's guilt. (People v. Genus (1979), 74 Ill. App.3d 1002, 1008-09; People v. Reese (1973), 54 Ill.2d 51, 58; People v. Szudy (1982), 108 Ill. App.3d 599, 605; see People v. Secret (1978), 72 Ill.2d 371.) In the present case, the victim had ample opportunity to view her assailant, her testimony was clear and convincing, and any minor variances and discrepancies in her recounting went only to the issue of credibility. The requirement that a prosecutrix' testimony be clear and convincing does not mean it must be uncontradicted or unimpeached. (People v. Barr (1980), 85 Ill. App.3d 992, 999.) Moreover, corroborating evidence was presented in the form of physical evidence as well as Moravek's prompt complaint to police officers, her husband, and her mother. See People v. Secret (1978), 72 Ill.2d 371; People v. Trejo (1976), 40 Ill. App.3d 503, 509; People v. Utinans (1977), 55 Ill. App.3d 306, 315.

• 2 The next issue raised by defendant on appeal is that the trial court erred when it prohibited defendant from cross-examining the complaining witness on her refusal to talk to defense counsel. Defendant contends that the judicial trend in Illinois is to permit the widest latitude possible in cross-examination of witnesses, and since inquiry into a witness' refusal to talk with one side may affect that witness' credibility in the minds of the jurors (see People v. VanZile (1977), 48 Ill. App.3d 972; People v. Timmons (1983), 114 Ill. App.3d 861; ...


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