dissenting:
I do not agree with the majority of the court. I am not satisfied the evidence establishes defendant’s guilt beyond a reasonable doubt.
The principal problem presented on this appeal arises from the strength and weaknesses of the identification testimony as compared with the alibi evidence. This problem was extensively considered in People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232, in relation to facts substantially similar to those in this case. In Gardner the Court discussed both generally and particularly the inherent frailty and potential fallibility of the observational process. The Court discussed the application of the rule which as stated by the majority asserts that the testimony of a single witness if positive and credible is sufficient to sustain a conviction even where such evidence is contradicted by defendant or his evidence. The Court’s reversal of the conviction in Gardner and its reasons therefore indicate that the identification testimony of a single witness is not positive and credible merely because expressed in unequivocal terms in open court.
The customary and accepted practice of in court identification permits the assertion of identification as a positive fact which tends to obscure its major ingredient, that of a preceptual opinion. When a witness announces from the witness stand “that is the man who assaulted me” the question arises by necessary implication, “why?”. Generally the response to such question if asked is that “he looks like the man”. We commonly accept this method of testimony. If the identification is expressed in terms of “I believe”, “I think”, or “he looks like” which are more in accord with the mental process involved, the effect of the testimony is diminished. The testimony may be considered doubtful because of the failure to express identification in terms of vehement conviction.
The nature of eye witness identification as a perceptual process has in recent years received considerable examination. (See U.S. v. Wade, 388 U.S. 218, Gilbert v. State of California, 388 U.S. 263, Stovall v. Denno, 388 U.S. 293, Simmons v. U.S. 390 U.S. 377, People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232, People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152 and People v. Caldwell, 117 Ill.App.2d 64, 253 N.E.2d 904.) It is not sufficient to sustain a conviction where identification of the accused is the principal controversy by holding that so long as there is “some” or “any” evidence supporting the conviction the resolution of the issue is solely the responsibility of the trier of fact. Where the underlying basis of an in court identification is doubtful or uncertain the unequivocal in court identification is not thereby rendered positive and credible.
My belief that the conviction in this case is not sustained by the evidence is based primarily on the weakness of the identification evidence as compared to the alibi evidence. The probative value of the eye witness identification testimony depends primarily upon the powers and facilities of the observer and the conditions of observation. Additionally events taking place after the observed event may confirm, impeach or distort the final conclusion. If the in court identification testimony lacks an adequate supporting basis the effect of the in court testimony is that of accusation rather than identification.
There are several aspects of the prosecution evidence which in their accumulative effect diminish the probative value of such evidence. Of initial concern to me are the impaired mental and physical faculties of the complaining witness. During her direct examination the following took place, “Q. Is this the entrance to your house — referring to Plaintiff’s exhibit #4? A. It looks familiar, but I can’t really tell you, there’s a door there, I don’t know whether he took this — is this supposed to be inside? Q. You have to tell me? A. I can’t see very good without glasses. There is a door that goes from the outside comes in to the hall, comes up to my apartment.”. On cross examination the witness admitted that she might have cataracts, and couldn’t see too well. In response to whether she wore glasses the withness stated “no I don’t wear them any more, I said it don’t do me any good, I can see alright.”. According to her testimony she was not wearing glasses at the time of the assault, at the time of the identification of defendant later the same evening or at the trial. Decreased visual acuity does not in and of itself render a conclusion based thereon incompetent but it is a factor affecting the credibility of such testimony. The prosecution endeavored to overcome the adverse effects of the witness’s impaired vision by in court demonstrations. Such demonstrations were superficial, earned on under ideal circumstances not present when prior observations were made, and indicated only a gross ability to see. Admittedly the visual faculty and power of observation of the complaining witness were impaired. Whether her confused testimony was the result of poor vision or of poor orientation as is suggested by the majority, does not obviate a doubt concerning her observational processes. Nor can I accept the argument of the State that the impaired abilities of the complaining witness ought to be ignored because otherwise offenders may attack such persons with impunity. The persuasive burden of the prosecution may not be diminished merely because the persuasive evidence may not be available.
Also affecting the complaining witness as observer was the physical mistreatment which she received and the mental shock of the whole incident. According to her own testimony she was dazed and only partially conscious from the moment the intruder pushed open the door. According to the complaining witness after assailant burst through the door “he hit me so hard, knocked me from the door to the bathroom where I had to hold on to one of those rods, I got so dizzy and my head went around like a windmill.”. Later her assailant struck her fifteen or twenty times on each side of the head.
This brings me to the lighting conditions at the scene together with the conditions and opportunities of observation. A review of the complaining witness’s testimony reveals a complete absence of any testimony regarding lighting conditions. Even more perplexing is the absence of any testimony relating to if, when and under what circumstances the witness saw the attacker’s face or otherwise observed her attacker. The complaining witness testified that she was working in her Idtchen at about 7:15 P.M. From her description of her attacker’s conduct and particularly his clothing the State argues that the rooms must have been well lighted but such argument finds no support in her testimony.
In People v. Appleby, 104 Ill.App.2d 207, 244 N.E.2d 395, the court in commenting unfavorably upon observational conditions stated, “* * * she, at no point, gave indication of the quality of illumination in proximity to the scene of the attack. We know only that the lights in the bathroom and a closet, ‘in the back’ had not been turned off by the assailant. No evidence was adduced to demonstrate the relationship these illuminated areas bore to the bedroom. The prosecutrix said only that it was light * * The foregoing observation was only one of many reasons for reversing the conviction in Appleby, there being other reasons apropos of the case at bar adversely affecting the probative value of the identification testimony.
In this case there is no evidence that any lights were on let alone testimony regarding illumination of the attacker. From her in court identification the majority seems to have adopted the position of the State, namely that the arera must have been lighted and that the complaining witness must have observed her assailant “face to face” or at close range. As can be seen from the majority opinion no testimony is referred to supporting such assertions and while the State might like to have the evidence viewed in this manner the unhappy fact is that the evidence is just not there.
So far as lighting is concerned, the majority suggests it was the duty of the defendant to prove the lights were off, a conclusion with which I do not agree. The evidence supporting the State’s case must stand or fall on its own merits or demerits and its failure to present significant evidence concerning an important issue can not be excused by shifting the responsibility to the defendant.
Likewise as in People v. Kincy, 72 Ill.App.2d 419,219, N.E.2d 662, which reversed a robbery conviction, there is an absence of testimony by complaining witness as to when and under what circumstances she saw her assailant or observed the features apparently relied on to support an in court identification. Identification which lacks an observational foundation is a delusion. Such observational foundation may not be implied from the identification itself.
The victim’s in court description of her attacker demonstrates the paucity of observational detail and when compared with other descriptions allegedly given by the victim there are significant discrepancies. Such descriptions are likely to vary to some extent in any retelling. Rather than bolstering or supporting the victim’s identification testimony as the State intended such descriptions are part of the cumulative circumstances casting doubt on the victim’s identification of defendant. The only testimony of the victim regarding the description of her attacker is as follows, “Q. Do you remember how the man was dressed before this happened? A. Yes, he had on a dark suit, dark pants, a top coat and I don’t know whether he had any other coat on, he just had on the one coat. Q. I want to call your attention to plaintiff’s exhibit #7. I withdraw the question. Was there anything about the man that was there in your apartment that night that you would remember about him? A. I don’t know what you mean. Q. Anything about his face, or identifying marks? A. No, but he had a scar on his face, a small scar.”.
When such testimony is compared with the description the victim was alleged to have given to the police officer it is not easy to conclude that the descriptions were given by the same observer.
As noted above, the State’s Attorney started to inquire of the witness concerning the identification of the State’s exhibit #7 which was the yellow sweater jacket worn by defendant at the time of his arrest. The reason for the withdrawal of the question is apparent. The witness in her prior account for all practical purposes precluded any identification of such jacket.
Officer West testified that the victim gave the following description of her attacker when he talked to her in her apartment just before she was taken to the hospital. “Q. What, if anything did she say? A. She said that she had been raped by a male Negro subject. Q. Was there any other description given? A. Yes, she said he had a black leather coat, black pants, yellow sweater and white shirt, and that he was about 5 feet 7 inches.” In response to a specific question West further testified that the victim did not mention any scar on the face of her attacker.
Officer Geiger’s testimony concerning the description given him by the victim is substantially the same as that of West except Geiger indicates that the victim referred to a scar.
The descriptions of the assailant which officers West and Geiger testified were given to them by the victim do describe defendant. Whether such descriptions were in fact given by the victim or were descriptions arrived at after the defendant was arrested is at least doubtful in view of the testimony. As indicated earlier, the description by Mrs. Simmons as stated in open court is inconsistent with the description she purportedly gave to the officers. Additionally it should be noted there is nothing in the victim’s testimony that she gave any description to either officer and in fact her testimony regarding any description given to Geiger is to the contrary. Neither officer testified as to any independent recollection of conversations with the victim unrefreshed by reports made at the time of the incident. Nor is there any evidence that any reports including such descriptions were made prior to defendant’s arrest. The testimony of officers West and Geiger was largely hearsay. Although not objected to, such hearsay testimony may not be considered independent evidence supporting the conviction.
This brings me to the identification of defendant by complaining witness after she had returned from the hospital at about 10:30 P.M. The record reveals that the identification was not a spontaneous act by the complaining witness. As they were approaching the apartment she did not see the defendant from her vantage point in the police car and declare he was the one. Instead the defendant was intercepted and stopped by two police officers, brought to the area of the police car and, according to the complaining witness, she was asked to identify him which she did. Again there is the absence of significant testimony regarding the lighting conditions and indeed most of the testimony would indicate that the area was dark thereby casting doubt on the identification. There is some general reference to a street light but Officer West could not recall where the street light was. Officer Geiger, the other policeman present, does not mention lighting in his testimony. According to defendant Starling it was dark and the complaining witness did not even look at his face but only at his clothing. Joe Jones who was waiting for Starling and who observed the scene from his car parked some three car lengths away, stated that the area was dark and not lighted by the street light. Prior to the time of making this identification the complaining witness had received a sedative and according to West she declined to come to the station house a short time later to make a report because she was too sleepy.
No claim is made that the identification procedure might have been impermissibly suggestive (U.S. v. Wade, 388 U.S. 218) or that the testimony of the police officers may have been incompetent hearsay (People v. Wright, 124 Ill.App.2d 223, 260 N.E.2d 265). In my view of this case it is not necessary to determine the competence of the identification testimony but the rules suggested in the foregoing cases are of significant value in considering the probative value of the identification testimony. If the area was dark as the witnesses testified or if evidence of lighting is absent, the purported identification is irrelevant as a test for either supporting or detracting from the victim’s in court identification. If the victim had failed to identify the defendant at this confrontation but later identified him in open court the adverse circumstances surrounding the identification scene could easily explain such failure. If, notwithstanding the absence of evidence favoring the observational process, it might be said that meaningful observation could take place the identification is still subject to a weakness of undue suggestiveness. The potential for erroneous identification in a one man confrontation has been amply discussed in such cases as Wade, supra and Blumenshine, supra. In this connection it should also be noted that the testimony of West and Geiger was hearsay and is of no independent value in buttressing the victim’s testimony notwithstanding its apparent introduction for that purpose.
The last witness presented by the prosecution in its case in chief was police officer Smiley. His testimony included the disclosure that prior to commencement of trial on that morning he had exhibited a series of six photographs to the complaining witness for the ostensible purpose of refuting any suggestion that one Bobby Kittrell was the assailant. According to Smiley the complaining witness identified the defendant and not Kittrell from the group of photgraphs.
In this connection the Bobby Kittrell matter deserves explanation. As earlier outlined in the facts, Julia Bridges and Joe Howard initially testified for the prosecution, their testimony being introduced for the pmpose of tending to prove that Starling was in the area at the time of the commission of the offense. During Julia Bridges cross examination she indicated that Bobby Kittrell had lived in the apartment building at the time of the offense, that she had seen him drive up behind the apartment building at about the time of the offense, come in and leave about ten minutes later. In his direct examination of Joe Howard the State’s Attorney asked him whether Julia had told him anything about Kittrell. Howard indicated that Julia had mentioned Kittrell the following evening after he had returned from work and that she had expected Kittrell to be in jail for the offense further indicating that this information had come from Mrs. Simmons. The prosecuting attorney appeared to be surprised at this turn of testimony and sought to cast doubts on the testimony because each witness had failed to mention Kittrell when interviewed by representatives of the State’s Attorney’s office. The witnesses explained their failure to mention Kittrell on the grounds that they had not been asked about him or anyone else other than Starling.
Officer Smiley’s testimony concerning the morning exhibition of photographs to the complaining witness was clearly incompetent hearsay, condemned in People v. Wright, 124 Ill.App.2d 223, 260 N.E.2d 265, People v. Denham, 41 Ill.2d 1, 241 N.E.2d 415 and People v. Turner, 91 Ill.App.2d 436, 235 N.E.2d 317. As heretofore noted much of the testimony of officers West and Geiger was also hearsay and although defendant did not object to such testimony the surplus of hearsay testimony tends to obscure the paucity of competent probative testimony. The necessity of resort to or presenting such incompetent evidence reveals not only the weakness of the prosecution’s case as a whole but particularly the weakness of the testimony of the complaining witness. If it had not been for officer Smiley’s incompetent testimony the record would have failed to reveal the inexcusable and highly prejudicial photographic identification. As pointed out in Simmons v. U.S. 390 U.S. 377 and People v. Caldwell, 117 Ill.App.2d 64, 253 N.E.2d 904, a witness’s in court identification may well be affected by a prior photographic identification and the witness may well be identifying the person identified in the photograph rather than the offender. See also U.S. v. Zeiler, 427 Fed.2d 1305 and also dissent in People v. Brown, (Ill.App.2d). Each of 'the foregoing cases concludes that the use of photos prior to the apprehension of the offender is a necessary and proper step in the investigatory process. There is however no such justification for exhibiting photographs to a witness prior to her testimony in open court. Where, as in the case at bar, the complaining witness, due to impaired faculties, evidences poor powers of discrimination the subsequent in court identification is rendered nearly valueless.
The exhibition of the photographs by implication reveals another disturbing facet of this case. The prosecution even prior to the commencement of the trial and prior to the testimony of Julia Bridges and Joe Howard, was aware of the possible involvement of Bobby Kittrell as the offender. The only apparent source of information regarding Kittrell was the complaining witness herself since it is her identification which is the whole case. In fact the hearsay testimony of Howard concerning Kittrell’s implication in the offense by Mrs. Simmons stands unrebutted in the record.
In view of Mrs. Simmons’ last minute identification of defendant from the photographs the prosecution had no alternative except to proceed against defendant since otherwise there would be little prospect that anyone else could be charged or convicted of the offense.
In his only reference to defendant’s alibi in his findings the trial judge observed, “* * * defendant’s alibi of one Kittrell being in the area at the time of the alleged rape was not worthy of belief, in view of the clear and convincing testimony of the complainant * * This observation by the judge is difficult to understand. All of the testimony regarding Kittrell was presented by witnesses testifying in behalf of the prosecution. The observation also suggests that perhaps the defendant had some duty regarding the Kittrell issue which he had failed to assume. That Kittrell may have been the assailant was not defendant’s alibi but instead his defense was that he had been some place other than in the Simmons apartment at the time of the offense.
This brings me to the question of whether there is any evidence to corroborate the identification of defendant by the complaining witness. Prosecution urges that the stained undershorts constitute corroboration. At best the inferences which may be drawn from the stained undershorts are equivocal and the corroborative effect doubtful. As indicated earlier it appears that laboratory examination was attempted but absent evidence of the results thereof it can not be said that the stains were blood of the victim or that such blood stains were not the result of defendant’s own bleeding. Defendant’s claim of passing blood both prior and after his operation was confirmed by the testimony of his mother. Affording additional support to the inference that such stains were the result of the defendant’s own bleeding rather than the victim’s was the testimony of the police officer originally receiving the clothing. According to his testimony he examined the fly area of the trousers carefully and was unable to find any stains either on such area or on any other clothing of defendant. According to the testimony of the complaining witness concerning her vaginal bleeding and the circumstances surrounding the assault it is difficult to understand how staining of the attacker’s trousers could have been avoided.
Four witnesses supported defendant’s alibi. Their testimony generally covering the time period from 5 P.M. until 8:45 P.M. supported tire defendant’s testimony and was inconsistent only in minor details as might be expected. That they were friends or relatives of defendant does not require that their testimony be disregarded nor can it be said that their testimony was a recent concoction or fabrication as in People v. Guido, 25 Ill.2d 204,184 N.E.2d 858. The charge of concoction by the prosecution is based on the fact that the witnesses referred to the Bill Cosby television show which came on at 7:30 P.M. to support their estimates of time. Since these witnesses were black and since the Bill Cosby show significantly appeals to blacks no sinister or improbable motives can be attributed to the witnesses.
I believe that the observation of the court in People v. McGee, 21 Ill.2d 440, 173 N.E.2d 434, as approved in People v. Kincy, supra, is applicable to the facts in the case at bar. In that case the court stated, “Taken in conjunction with the uncontradicted evidence of an alibi, which is neither improbable nor such as taxes credulity we are of the opinion there was not such positive identification here which fairly or reasonably supports the conviction.”. In my view the evidence when viewed fairly and reasonably fails to produce an abiding conviction that defendant was guilty beyond a reasonable doubt.