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People v. Nims

OPINION FILED DECEMBER 12, 1986.

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

v.

BRUCE NIMS, A/K/A BRUCE MARICO, A/K/A BRUCE NIMES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Philip J. Carey, Judge, presiding.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Following a bench trial, defendant, Bruce Nims, was found guilty of home invasion, rape, deviate sexual assault and armed robbery (Ill. Rev. Stat. 1981, ch. 38, pars. 12-11, 11-1, 11-3 and 18-2), and was sentenced to serve four concurrent terms of 25 years in the Illinois Department of Corrections. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt and that the State's failure to comply with a discovery request deprived him of a fair trial.

Complainant testified that at 4 a.m. on August 15, 1981, she was asleep in the bedroom of her Chicago residence when she was awakened by the sound of a cigarette lighter clicking on and off. Defendant, who was holding the lighter in one hand and a knife in the other, warned her to keep quiet or he would cut her. He then raped complainant and forced her to perform an act of fellatio. Complainant testified that although the room was dark and she was not wearing her glasses, she was able to see defendant's face because he was directly in front of her and the room was illuminated by light emanating from a side porch lamp and alley lights. She also stated that defendant lit a disposable cigarette lighter four or five times. Before leaving, defendant took complainant's locket and chain, her purse and the disposable lighter and threatened to kill her if she told anyone what had happened.

Complainant reported the incident to the police as soon as defendant left and described him as a male black, 5 feet 9 inches to 5 feet 10 inches tall with brown skin, a light mustache and combed-back "permed" hair, wearing faded blue jeans and a navy-blue sweater. Before taking her to the hospital, the police drove her to a location four or five blocks away to view a suspect. Complainant stated that the suspect was not her assailant. At the hospital, she again described the offender and estimated his weight to be between 150 and 160 pounds. The following day, she viewed several books containing mug shots, but was unable to identify the attacker. Two days later, however, complainant identified defendant's picture from an array of six photographs. She also was able to identify defendant in a lineup. Following complainant's initial identification, the police recovered from defendant's apartment a pair of blue jeans and a navy sweater which complainant identified as clothing worn by the offender. She recognized the blue jeans because they were faded and had zippers on the front.

Testifying for defendant, Officer Thomas Sheehan stated that complainant described the offender to his partner, Officer Colvin, as a male black, 5 feet 9 inches to 5 feet 10 inches tall who reeked of alcohol. The parties stipulated that in Colvin's report of his interview with complainant, she also stated that her assailant was 18 to 20 years old, had a thin build and weighed approximately 150 pounds, and was wearing a blue or brown sweater and dark pants. Sheehan was not present when this information was conveyed to his partner. Colvin reported as "unknown" the description of the offender's eyes, hair and complexion. Investigator Raymond Binkowski testified that he was given a description of the offender as a male black in his early twenties, with a medium-brown complexion, 5 feet 8 inches or 5 feet 9 inches tall, approximately 155 pounds and wearing a blue shirt or sweater. Binkowski received this description not directly from complainant but from another investigator who was preparing a composite description of a suspect wanted in a series of rapes.

Defendant then called an evidence technician who had processed the crime scene for physical evidence. Although the premises were dusted for fingerprints, the only prints discovered were smudged and unsuitable for comparison. Muddy footprints were found but the impressions were too light to photograph. Another evidence technician testified that tests performed on defendant's clothing and shoes were negative for the presence of spermatozoa or blood. A soil comparison was impossible. At one point during defense counsel's direct examination, the witness referred to a report he had compiled, causing defense counsel to state:

"Judge, just for the record, I just asked leave to mark a one page report as Defense Exhibit 2 for Identification. That is the first time to my knowledge that either myself or [co-counsel] has seen that report. We are prepared to proceed. I just wanted to make that known and tender a copy — or showing it to the State, who apparently has a copy." (Emphasis added.)

Defendant testified that he is a 27-year-old black male weighing 179 pounds, approximately 5 feet 8 inches tall, and has worn a goatee for many years. Defendant stated that he has a scar over his left eye and what defense counsel described as a "knot" over his right eye as a result of injuries he sustained in a robbery that occurred in March 1980. Two other witnesses confirmed that defendant had the facial scars and wore the goatee prior to August 15, 1981. Defendant testified that at the time of the incident, he was playing cards with several friends, including Tyrone Parham, Ernest Bailey and Jim Conway. The game ended at approximately 6 a.m. Although Parham corroborated this testimony, he never advised the police of defendant's whereabouts. Both defendant and his alibi witness had difficulty remembering the time, date and location of numerous other card games they had played in August 1981. Bailey and Conway did not testify although Conway was present at defendant's trial.

OPINION

I

Defendant initially contends that he was not proved guilty beyond a reasonable doubt because the testimony of complainant was neither clear and convincing nor corroborated by other evidence.

• 1, 2 It is well established that the positive identification of a single witness is sufficient to support a conviction, provided that the witness is credible and observed the offender under conditions which would permit a positive identification to be made. (People v. Mendoza (1978), 62 Ill. App.3d 609, 615-18, 378 N.E.2d 1318.) This is true even where the defendant presents alibi testimony which is corroborated by other witnesses. (People v. Shelby (1984), 123 Ill. App.3d 153, 165, 462 N.E.2d 761.) Discrepancies or omissions in detail do not destroy the validity of an identification, but rather affect the weight of the testimony and are to be evaluated by the trier of fact. (People v. Shelby (1984), 123 Ill. App.3d 153, 462 N.E.2d 761; People v. Mendoza (1978), 62 Ill. App.3d 609, 378 N.E.2d 1318.) With regard to identification testimony, it has been noted that "untrained persons may give varying descriptions of another person's physical characteristics" and that "an identification is not usually made by distinguishing separate features, but by the total impression made upon the witness." People v. Shelby (1984), 123 Ill. App.3d 153, 165, 462 N.E.2d 761.

In the instant case complainant testified that although it was dark in her bedroom, there was sufficient illumination from a side porch light and nearby alley lights to enable her to see defendant's face. (She apparently was mistaken in her belief that light from a full moon was visible that night.) Additional illumination was provided by defendant's action in lighting a disposable cigarette lighter. Although the dissent correctly notes that complainant was not wearing her glasses when she was attacked, it overlooks her testimony that the intruder forced her to look at him for approximately 20 minutes during which time his face was very close to her own. Complainant admitted that she is nearsighted but stated that even without her glasses she had "a clear view" of her assailant.

Both defendant and the dissent maintain that the description which complainant gave to the police did not match defendant's actual physical appearance. We disagree.

Complainant described her assailant as a male black, 5 feet 9 inches to 5 feet 10 inches tall, weighing 150 to 160 pounds, with brown (or medium-brown) skin, a light mustache and combed-back "permed" hair. While defendant testified that he is 5 feet 8 inches tall and weighed 179 pounds, the trial judge could observe for himself whether defendant's testimony regarding his height and weight was accurate. Moreover, defendant's weight at trial had no necessary relationship to his weight at the time of the offenses one year earlier. Defendant did not dispute that he had a light mustache and combed-back "permed" hair in August 1981. Neither complainant nor any other witness testified that she had estimated the offender's age. Investigator Binkowski was told by another investigator that the suspect who was wanted for a series of rapes, including this one, was in his early twenties. The parties stipulated, however, that complainant had told Officer Colvin that her assailant was 18 to 20 years old. In August 1981 defendant was 26 years old. In our judgment, the significance of this difference was a matter for the trial court to resolve.

• 3, 4 The principal discrepancy between complainant's description and defendant's actual appearance concerns his facial scars and his goatee. Complainant did not mention these features when she was interviewed by the police. Although the photographs of defendant that were introduced into evidence *fn1 do reveal a "knot" or bump above his right eye and a small scar above his left eye, the lighting conditions when these photographs were taken obviously were better than they were at the time of the crimes. With respect to defendant's goatee, complainant did testify that her assailant had "a couple whiskers" on his chin but not "a beard." As the dissent concedes, no chin hairs are apparent in any of defendant's photographs. Complainant should not be faulted for not describing an invisible "goatee." An examination of the photographs included in the supplemental record does reveal the presence of the "light mustache" to which complainant referred in her testimony.

As stated earlier, it is the total impression upon the witness rather than the distinguishing of separate features which generally forms the basis for an identification. (People v. Shelby (1984), 123 Ill. App.3d 153, 164-65, 462 N.E.2d 761.) We agree with the trial court's finding that the alleged discrepancies between complainant's description of the offender and defendant's actual physical appearance were minor in nature and did not affect her credibility as a witness. The court found that complainant "had sufficient opportunity to make that identification" and that "her identification was without question correct." We will not disturb these findings.

The State introduced into evidence six photographs shown to complainant two days after she had been raped and one photograph of the four-man lineup conducted on the same day. The dissent waxes indignant over the State's failure to have these photographs impounded at trial and made part of the record on appeal and speculates at length about their possible probative value. Curiously, defense counsel, particularly at oral argument, did not seem to be at all troubled by what has so exercised the dissent. Indeed, counsel opined that the photographs may not have captured all of defendant's facial characteristics. In any event, we are unable to indulge in the conjecture offered by the dissent. Defendant is the appellant in this appeal and it was his responsibility to preserve evidence presented at trial. (People v. Wilson (1981), 92 Ill. App.3d 370, 386, 415 N.E.2d 1315.) Had the photographs offered by the State possessed the evidentiary significance which the dissent attributes to them, surely defense counsel would have had them impounded and transmitted to this court as part of the record on appeal. At oral argument the assistant State's Attorney acknowledged that the State has these photographs in its possession. Nevertheless, defendant has made no effort to obtain these photographs and file them as a supplemental record. Under these circumstances, the outrage expressed by the dissent over their absence clearly is gratuitous and misdirected.

Defendant also challenges as unduly suggestive the identification procedures utilized by the police. It appears that two days following the incident defendant was arrested on a disorderly conduct charge. While in custody a police officer noticed his physical similarity to the description given by complainant and included his picture in a photographic array presented to her. Complainant identified defendant's photograph. Following this identification she was taken to the police station to view a lineup which included defendant. While at the station she observed two photographs of defendant lying alongside the other five photographs which comprised the photographic array from which she had earlier identified him. Beneath defendant's photograph was an arrest slip containing his name and other information. Complainant then viewed the lineup and identified defendant as well as certain clothing confiscated from his apartment.

• 5 In addressing defendant's argument concerning the allegedly suggestive identification procedures, it is important to note that this is not a case in which the complaining witness made an identification from the first group of pictures shown to her. The record reveals that complainant viewed one suspect in person, then several books containing mug shots before finally identifying defendant's picture in a photographic array. Moreover, the allegedly suggestive procedure of allowing defendant's photograph, along with his arrest slip, to remain on a table within complainant's view occurred after she had identified his picture as that of her attacker. Under these circumstances, we find that defendant was not prejudiced by the identification procedures employed in the instant case.

• 6 Both defendant and the dissent stress that his alibi defense was corroborated and unimpeached. It is well established, however, that the trier of fact is not required to believe alibi evidence even though it is unrefuted. (People v. Hunt (1980), 90 Ill. App.3d 496, 501, 413 N.E.2d 215.) The value of alibi evidence necessarily hinges upon the credibility and believability of the witnesses providing the alibi, questions which are within the exclusive domain of the trier of fact. (People v. Hunt (1980), 90 Ill. App.3d 496, 413 N.E.2d 215.) Here, the trial court specifically found that defendant and his alibi witness were not telling the truth. We note further that their testimony regarding other card games that they played in August 1981 was vague and that two other potential alibi witnesses did not testify even though the record indicates that one of them was present for defendant's trial.

• 7 The dissent comments extensively regarding the lack of corroborative physical evidence in this case but ignores the reasons therefore. Although no evidence of spermatozoa or blood was discovered on defendant's clothes or his shoes (there was no testimony that complainant had been cut), these items of clothing were recovered two days after the offenses were committed, allowing defendant ample time to remove any incriminating physical evidence. The fingerprints found at the scene were smudged and unsuitable for comparison. The impressions made by the offender's shoes were too light to photograph and a soil comparison was impossible because defendant's shoes had no dirt on them. Although none of complainant's property was recovered, defendant's apartment was not searched until two days after the offenses were committed. Defendant had more than adequate opportunity to dispose of the victim's property. We note, however, that the police did recover from defendant's apartment one pair of faded blue jeans with zippers on the front and a navy-blue sweater which complainant identified in court as clothing worn by her assailant.

Upon our review of the record, we are satisfied that defendant was proved guilty beyond a reasonable doubt.

II

• 8 Defendant next contends that he was deprived of a fair trial as a result of the State's failure to provide him with a copy of an evidence technician's report, as required by the discovery rules. 87 Ill.2d R. 412.

Illinois law provides that upon learning of an alleged nondisclosure, defendant must take affirmative action by seeking a continuance or by requesting appropriate sanctions and cannot wait until after the trial and verdict to complain. (People v. Rogers (1984), 122 Ill. App.3d 384, 393, 461 N.E.2d 511.) In the absence of such affirmative action, the defendant will be found to have waived his objections to the nondisclosure. (122 Ill. App.3d 384, 461 N.E.2d 511.) Furthermore, the State's noncompliance with a discovery requirement does not warrant reversal absent a showing of prejudice. (People v. Velez (1984), 123 Ill. App.3d 210, 219, 462 N.E.2d 746.) In People v. Foster (1979), 76 Ill.2d 365, 384, 392 N.E.2d 6, the Illinois Supreme Court stated that a defendant's failure to request a continuance or recess when confronted with a discovery violation is persuasive evidence that any alleged prejudice was in fact trivial.

In the instant case, the evidence technician who compiled the report was called as a defense witness and was examined thoroughly concerning the contents of the report. Although defense counsel noted "for the record" that neither he nor co-counsel previously had seen the report, he informed the court that "we are ready to proceed." With the above-stated principles in mind, we do not believe that reversal is warranted under these circumstances.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. Pursuant to People v. Nicholls (1978), 71 Ill.2d 166, 374 N.E.2d 194, we grant the State's request that defendant be assessed $50 as costs for the State's defending this appeal and incorporate it as part of our judgment.

Affirmed.

JUSTICE LORENZ, specially concurring:

I concur with the well-reasoned opinion authored by Justice Sullivan. I fear that our colleague's dissent adopts an analysis which jeopardizes the primary authority of the trial court as the trier of fact to weigh the evidence and determine the credibility of witnesses. Our dissenting colleague appears to be substituting his judgment for that of the trial court concerning the credibility of witnesses as affected by minor discrepancies in the description of the defendant. Yet this substitution of judgment is accomplished without the benefit of personal observation uniquely available to the trial court. This is not our function and I fear that silence on this issue would encourage this inappropriate practice in this court of review.

The dissent would have the majority reject the trial court's finding that the State's eyewitness was credible and that the defendant was proved guilty beyond a reasonable doubt. But to do so in this case would require that we discard well-established precedent which holds that minor discrepancies in descriptions of facial hair, scars, height, clothing and weight are primarily matters to be factored into credibility evaluation by the trier of fact and not matters to be reweighed by a reviewing court. (People v. Danis (1984), 129 Ill. App.3d 664, 472 N.E.2d 1194; People v. Smith (1977), 52 Ill. App.3d 583, 367 N.E.2d 756.) Furthermore, as these cases expressly recognize, identifications are ordinarily based upon the total impression received by the witness rather than upon isolated features.

I believe that the defendant's guilt was established beyond a reasonable doubt. This court is not a proper forum for a trial de novo. We have no opportunity to observe the demeanor of witnesses. We have not had the trier of fact's view of the defendant so as to determine what facial features may or may not have been readily apparent. The trial court, not this court, had a basis for determining the accuracy of the assistant State's Attorney's characterization of the defendant's scars as not very visible. The trial court, not this court, could observe the defendant and determine whether alleged height or weight discrepancies were so evident as to reflect on the complainant's credibility.

As a reviewing court we have a solemn obligation not to substitute our judgment for that of the trier of fact on the weight of evidence or the credibility of witnesses. (People v. Novotny (1968), 41 Ill.2d 401, 244 N.E.2d 182.) We are not a court of retrial; the trier of fact has already weighed the evidence and evaluated the credibility of all the witnesses that the parties chose to present. We are now bound to consider all of the evidence in the light most favorable to the prosecution and then to determine whether any rational trier of fact could have found that all elements of the crime were established beyond a reasonable doubt. (People v. Collins (1985), 106 Ill.2d 237, 478 N.E.2d 267.) In light of these principles, I specially concur with Justice Sullivan and affirm the convictions.

JUSTICE PINCHAM, dissenting:

I dissent. The defendant concedes that the evidence proved beyond a reasonable doubt that an assailant unlawfully invaded the complainant's home and therein robbed and sexually abused her. The defendant urges, however, that the evidence did not establish beyond a reasonable doubt that he was the assailant. He insists that he is innocent — that his conviction is one of mistaken identification and that the evidence established beyond a reasonable doubt that he was not the person who committed the offenses. I agree.

The specially concurring opinion urges that when a defendant on appeal contends for reversal of his conviction that the evidence failed to prove beyond a reasonable doubt that it was he who committed the offense, the trial court's guilty finding is indelibly engraved in stone, never to be erased, however erroneous, ill-founded, unsupported or unjust the finding may be. When a defendant on appeal contends for reversal that his conviction rests upon an identification which is doubtful, uncertain and does not produce an abiding conviction of guilt beyond a reasonable doubt, the duty of the reviewing court in resolving this basic and fundamental issue is most assuredly higher than the mere formality of favorably rubber-stamping the trial court's guilty finding.

The specially concurring opinion iterates the principles that "this court is not a proper forum for a trial de novo," that "we are not a court of retrial," that "we have no opportunity to observe the demeanor of witnesses," and that "the trial court, not this court, could observe the defendant." Yet, this specially concurring opinion runs afoul of "these principles" in concluding, "I believe that the defendant's guilt was established beyond a reasonable doubt."

The views set forth in the specially concurring opinion, purportedly in accord with the views of Justice Sullivan, are contrary to the following views expressed by Justice Sullivan for a unanimous court in People v. Binns (1975), 27 Ill. App.3d 978, 982, 327 N.E.2d 369:

"We have carefully read the testimony presented at trial, and we are mindful of the salutary principle that this court will not disturb the findings of the trier of fact unless the proof is so unsatisfactory as to justify a reasonable doubt of defendant's guilt. Nevertheless, we must conclude that defendant was not proven guilty beyond a reasonable doubt of knowingly possessing marijuana. In view thereof, the judgment is reversed." (Emphasis added.)

The law is clear and the cases are legion which hold that where the conviction of a defendant rests upon identification which is doubtful, vague and uncertain, and which does not produce an abiding conviction of guilt, the conviction will not be permitted to stand. I discuss but a few of these cases.

In reversing the defendant's conviction for armed robbery, home invasion and unlawful restraint entered on a jury's guilty findings in People v. Ash (1984), 102 Ill.2d 485, 492-95, 468 N.E.2d 1153, the supreme court stated:

"`[I]t is our duty, where a verdict of guilty is returned by a jury * * * not only to carefully consider the evidence but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt and is not sufficient to create an abiding conviction that he is guilty of the crime charged.' (People v. Bartall (1983), 98 Ill.2d 294, 305-06.) * * * The State argues that the [appellate] court * * * erroneously substituted its judgment in place of the trier of fact in its appraisal of [Ash's] identification * * *.

A conviction cannot be deemed to be sustained beyond reasonable doubt by the evidence if identification of the accused was vague and doubtful. (People v. Gardner (1966), 35 Ill.2d 564, 571; People v. Cullotta (1965), 32 Ill.2d 502, 504; People v. Hister (1974), 20 Ill. App.3d 933, 937.) [The] identification of Ash was insufficient to support a conclusion that Ash was guilty beyond a reasonable doubt." (Emphasis added.)

The supreme court reversed the defendant's murder conviction because the evidence failed to establish beyond a reasonable doubt that the defendant was the offender in People v. Kilgore (1974), 59 Ill.2d 173, 178, 319 N.E.2d 489. The court stated, "While questions of credibility and weight are for the jury, and we do not lightly take the step of reversing a jury's determination of guilt, this conviction cannot stand. People v. Gardner [(1966)], 35 Ill.2d 564."

In People v. Gardner (1966), 35 Ill.2d 564, 221 N.E.2d 232, a jury found the defendant guilty of rape. The appellate court affirmed the conviction. (People v. Gardner (1965), 61 Ill. App.2d 326, 210 N.E.2d 545.) Granting leave to appeal, the only issue before the supreme court was whether the defendant's guilt was proved beyond a reasonable doubt. In reversing, the supreme court stated:

"This court has often held that: `In a criminal case it is incumbent upon the prosecution to prove beyond a reasonable doubt not only the commission of the crime charged but also its perpetration by the accused. * * * And while the identification and whereabouts of the defendant at the time of the crime are questions for the jury, yet, where from the entire record there is a reasonable doubt as to the guilt of the accused, a judgment of conviction will not be permitted to stand. (People v. Ricili [(1948)], 400 Ill. 309; People v. Gold [(1935)], 361 Ill. 23.) Where the conviction of a defendant rests upon identification which is doubtful, vague and uncertain, and which does not produce an abiding conviction of guilt, it will be reversed. (People v. Fiorita [(1930)], 339 Ill. 78; People v. Kidd [(1951)], 410 Ill. 271.) Neither can we disregard the evidence of alibi where the sole and only evidence contradicting it rests upon the identity of the defendant as the man who committed the crime. People v. Peck [(1934)], 358 Ill. 642; People v. De Suno [(1933)], 354 Ill. 387.' People v. McGee [(1961)], 21 Ill.2d 440, 444." People v. Gardner (1966), 35 Ill.2d 564, 571, 221 N.E.2d 232.

The defendant was found guilty of rape and armed violence after a bench trial and sentenced to 20 years' imprisonment in People v. Byas (1983), 117 Ill. App.3d 979, 453 N.E.2d 1141. In Byas, this court pointed out discrepancies in the complainant's description of her assailant which were strikingly similar to the discrepancies in the complainant's description of the assailant in the case at bar. The court stated:

"[T]he complainant's description of her assailant substantially differs from the actual physical characteristics of the defendant. The complainant initially described her assailant as being six feet tall, 170 pounds and in his early twenties. The next day, during a police interview, the complainant revised her description of the attacker, stating that he was 5 feet 11 inches tall, weighed approximately 175 pounds, was approximately 23 years old, darkly complected and had a hairy chest. In fact, the defendant is 5 feet 7 inches tall, weighs 147 pounds and has no hair on his chest or stomach. The State calls these discrepancies `minor.' These are not trivial variances, and the State's evidence offers no explanation for these differences. (People v. Marshall (1966), 74 Ill. App.2d 483, 221 N.E.2d 133. See also People v. Carroll (1970), 119 Ill. App.2d 314, 256 N.E.2d 153 (substantial variance in height, weight and presence of beard); People v. Barney (1965), 60 Ill. App.2d 79, 208 N.E.2d 378 (variances in height, weight and posture).) In particular, the absence of a physical characteristic which the witness claims the defendant possesses undercuts the strength of her identification. (Cf. People v. King (1973), 10 Ill. App.3d 652, 295 N.E.2d 258 (failure to assert a distinctive physical feature which the defendant possesses is prima facie inconsistent conduct which, unexplained, tends to discredit the witness).) The State coyly contends that the trial court observed the defendant's chest and could determine for itself the degree of hair on it. The uncontradicted evidence is that the defendant has no hair on his chest." (People v. Byas (1983), 117 Ill. App.3d 979, 985-86, 453 N.E.2d 1141.)

Byas contended that the evidence failed to establish his identity beyond a reasonable doubt. This court held:

"We agree with this contention and reverse the defendant's conviction.

Although a reviewing court will not substitute its judgment for that of the fact finder on matters of weight and credibility, a conviction cannot be sustained if the identification of the accused is vague, doubtful or uncertain. (People v. White (1978), 56 Ill. App.3d 757, 372 N.E.2d 691.) Moreover, `[i]f a conviction is to be sustained, it must rest on the strength of the People's case and not on the weakness of the defendant's case.' (People v. Coulson (1958), 13 Ill.2d 290, 296, 149 N.E.2d 96.) In this case, the evidence of the defendant's identification is insufficient to sustain his conviction." 117 Ill. App.3d 979, 984, 453 N.E.2d 1141.

Reversing an armed-robbery conviction because the identification testimony did not produce an abiding conviction of guilt, this court held in People v. Carroll (1970), 119 Ill. App.2d 314, 320, 256 N.E.2d 153, that "[t]he State must obtain a conviction on the basis of proving beyond a reasonable doubt that the defendant committed the crime charged."

In People v. Barney (1965), 60 Ill. App.2d 79, 81, 208 N.E.2d 378, the jury's guilty finding and the judgment entered thereon of the defendant's unlawful sale of narcotics to an Illinois State narcotics inspector was reversed because the identity of the defendant was not proved beyond a reasonable doubt.

The statements of the specially concurring opinion that reversal in the case at bar requires "substituting [our] judgment for that of the trial court concerning the credibility of witnesses," and "would require that we discard well-established precedent," and that "silence on this issue would encourage this inappropriate practice in this court of review," are ill-founded, violative of and repugnant to the foregoing authorities.

Moreover, the authorities upon which the specially concurring opinion relies are not analogous to or on point with the case at bar. In People v. Danis (1984), 129 Ill. App.3d 664, 472 N.E.2d 1194, the defendant, a hitchhiker, rode with the victim, a truck driver, for two days from Sioux City, Iowa, to near Salina, Kansas. The defendant was later identified by a liquor store clerk as the person who visited the store frequently over a three-week period and who cashed checks which had been stolen from the truck driver. The truck driver also identified the defendant as the hitchhiker who rode with him in his truck from which the checks were stolen. In affirming the defendant's forgery conviction the court pointed out that prior acquaintance with the accused strengthened the reliability of the witnesses' identification testimony. The court added in Danis that "it is axiomatic that a conviction cannot be sustained if the identification of the accused was vague, doubtful or uncertain (People v. Ash (1984), 102 Ill.2d 485, 494) * * *." People v. Danis (1984), 129 Ill. App.3d 664, 667, 472 N.E.2d 1194.

People v. Novotny (1968), 41 Ill.2d 401, 244 N.E.2d 182, relied on in the specially concurring opinion, did not involve the credibility of the defendant's identification. In Novotny, the defendant admitted his participation in a brawl out of which his aggravated-battery conviction arose. The controversy in Novotny was over how the brawl was precipitated, "the complaining witness relating one version of events and the defense witnesses portraying a completely different picture." 41 Ill.2d 401, 411, 244 N.E.2d 182.

In People v. Smith (1977), 52 Ill. App.3d 583, 367 N.E.2d 756, on which the specially concurring opinion relies, the court stated that "[i]n weighing the sufficiency of evidence in a criminal case, the finding of the trier of fact will be affirmed unless the court of review can form a reasonable and well-founded doubt as to the defendant's guilt." (52 Ill. App.3d 583, 587, 367 N.E.2d 756.) The court further stated, however, that "[w]here the circumstances do not afford a favorable opportunity for positive identification that evidence may not be sufficient to sustain guilt beyond a reasonable doubt where faced with a plausible alibi." (52 Ill. App.3d 583, 588, 367 N.E.2d 756.) The court held that the identification by the hotel night auditor of the defendant as one of the three men who robbed her in the "well-lighted hotel lobby" sustained the jury's guilty finding.

People v. Collins (1985), 106 Ill.2d 237, 478 N.E.2d 267, cited in the specially concurring opinion, was a triple murder prosecution in which a participating accomplice testified for the State. The credibility of the defendant's identification was not an issue. Collins is therefore not on point.

Contrary to the specially concurring opinion, as I heretofore pointed out, in the case at bar, and in People v. Byas (1983), 117 Ill. App.3d 979, 986, 453 N.E.2d 1141, the discrepancies in the complainant's descriptions of her assailant were not minor or trivial variances. Her descriptions and identifications were contradictory, inconsistent, flagrantly flawed, unconvincing and did not produce an abiding conviction beyond a reasonable doubt that the defendant Nims was the assailant.

The Supreme Court expressed the hazards of mistaken identification in the landmark case, United States v. Wade (1967), 388 U.S. 218, 228, 18 L.Ed.2d 1149, 1158, 87 S.Ct. 1926, 1933, as follows:

"[I]dentification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: `What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials.'" (Emphasis added.)

The defendant in the instant case was 27 years of age. He attended Morgan Park High School through the 11th grade. He left school to enter the United States Navy on October 13, 1972. He served as a gunner's mate on the U.S. Hacienda on the west bank cruise, Thailand, Hong Kong, Japan and Vietnam. He was awarded the Vietnam Service Medal by the Republic of Vietnam and the Vietnam Campaign Medal by our nation for performance of his military duties. He was honorably discharged from the Navy with a rank of E-5 on February 26, 1974. He thereafter attended the Chicago 63rd and Green Streets Urban Progress Center and obtained his General Education Diploma, a high school diploma equivalent. The record reveals that the defendant had never been charged with the commission of a felony offense and that his only convictions were on June 25, 1974, for battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-3), for which he was fined $15, and on March 23, 1978, for unlawful possession of ammunition (Ill. Rev. Stat. 1985, ch. 38, par. 83-2(a)), to which he pleaded guilty and was sentenced to four days' imprisonment, which was considered served. In the case at bar the defendant was sentenced to concurrent imprisonment terms of 25 years for rape, 25 years for armed robbery, 25 years for home invasion, and 25 years for deviate sexual assault. A review of the evidence reveals that it failed to establish beyond a reasonable doubt that it was the defendant, Bruce Nims, who committed these offenses. More importantly, unrebutted evidence established that this defendant did not commit the offenses.

In her numerous descriptions of the assailant to the various police officers who interviewed her, the complainant never mentioned that her assailant had any marks or scars on his face. Yet, three witnesses testified, without contradiction, that on the date the offenses were committed, August 15, 1981, the defendant had a knot over one eye and a scar over the other which were inflicted upon the defendant when he was mugged and robbed in March 1980.

Theresa Ann Sanders, a defense witness, testified that she had known the defendant for nine years, five years of which she had been his girlfriend, and had resided with him until 1978, that the defendant was the father of her daughter and that she had had an ongoing relationship with him since 1978. She further testified that the "mark" over the defendant's left eye and the knot over his right eye were inflicted on the defendant's face in 1980 when he was mugged. Ms. Sanders was not asked a single question on cross-examination.

Euzella Nims, another defense witness, testified that she was the defendant's stepmother and that she had known the defendant for over eight years. She said that the "mark" over the defendant's left eye and the knot over his right eye were inflicted when the defendant was robbed "over a year or so ago." On cross-examination by the State, Ms. Nims was asked:

"Do you know if those 2 marks, the one above the left eye and the one above the right eye, were ...


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