delivered the decision of the court and the following opinion:
Following a bench trial, defendant was convicted of rape, robbery, and home invasion and sentenced to concurrent terms of eight years for rape and home invasion and six years for robbery. The significant contention by defendant on appeal is that there is a reasonable doubt as to his guilt on all offenses where the complaining witness’ identification testimony was not clear and convincing and his alibi was uncontroverted. Since there is agreement by two justices with this contention, the other issue raised by defendant will not be discussed.
The complaining witness testified that on June 1, 1982, between 10 and 11 a.m., she parked her car near her apartment building at 440 West Barry Street in Chicago, having just returned from a trip to Cincinnati. She removed her luggage and entered the building lobby. She rode the elevator to the fourth floor and carried her luggage to her apartment—No. 401. As she was unlocking the door, a black man—whom she identified in court as defendant—came out of the stairwell 10 feet away and approached her. He asked the whereabouts of Marco or Marcus, whom she knew to be the landlord. She responded that he was on one of the upper floors, and defendant reentered the stairwell but reappeared while she was trying to remove her key from the door lock. He asked whether he could use her telephone, and when she refused his request he “cornered” her by extending his arms so that she was between him and the wall. He then opened the apartment door, pushed complainant into the apartment, causing her to fall on the floor, and he locked the door. She began screaming, and he jumped on top of her, held her wrists with one hand, and put his other hand over her mouth. When she struggled to free herself, he slapped her on the mouth, cutting her lip, and told her that he had escaped from a penitentiary, that he had a knife and a gun, and said that he would kill her if she did not stop screaming. She continued to scream and struggle, and he again told her to behave or he would kill her. He asked for her valuables, and, when she refused to tell him where they were, he pushed her into the bedroom, where he tried to tie her hands behind her with some belts he had taken from her dresser drawers. She was able to free her hands and tried to get up, but he threw her back on the floor, pulled off her clothing, and pushed her onto the bed. She broke loose and ran to the door, but he caught her and pushed her back onto the bed, where he raped her. After-wards, he removed jewelry valued at several thousand dollars from her dresser and took her address book and photographs of her boyfriend and grandmother. He then wiped off the jewelry boxes and placed her property into a plastic yellow and black or brown drawstring shoebag and left the apartment. She called the police and the director of security at the nearby hospital where she worked as a nurse.
She testified also that she described her assailant to the responding police officer as a dark-complexioned black man in his early twenties, about six feet tall, weighing about 170 to 175 pounds, with a very short, neat, tight curly Afro hairstyle and having acne from “his chin line, lower chin line down the neck, down by the ears.” She also told the officer that he was wearing a brand new navy blue jacket with a zipper, a long-sleeved rugby shirt which had broad horizontal navy blue and gold stripes with a white collar and cuffs, light blue polyester pants which were too big for him, brown socks, brown underwear, and “white-beige eyelet tie shoes” which had pointed toes and low heels. She identified State’s exhibit No. 10 as “the same shoes that the man was wearing.”
On June 5, 1982, two police detectives showed her six photographs, out of which she identified a picture of defendant as her assailant. Later that day, she viewed a lineup at which she again identified defendant.
On cross-examination, she said she specifically told the officer that her assailant had eyelet shoes and had scars on his arms. At trial, she said that he had one scar on his arm, which looked life a knife scar having “a lot of scar tissue” and “the size of a knife blade.” She admitted that defendant was the only one of the six men in the lineup who was wearing light blue slacks and clean beige shoes, and she was told in advance that he would be in the lineup, which she viewed for two minutes from behind a viewing glass; but, to be certain of her identification, she approached each of them to compare their height to hers.
Upon questioning by the court, complainant said that in her duties as a nurse she described black people in her charts only as either light or dark complexioned, and that she would describe defendant as dark skinned. The court commented that he considered defendant to be of a medium or lighter complexion. Upon further questioning by the court, she said that her assailant was with her for over an hour until he left her apartment about 11:40 a.m., and while she believed he had a scar on his arm, she could not say exactly where it was.
Officer Roberts testified that on June 1, 1982, at 11:55 a.m., he received a rape report and proceeded to complainant’s apartment. She described her assailant as being a black male, age 24, 5 feet 11 inches tall, weighing 170 pounds, wearing a blue jacket, blue jeans, a yellow and blue rugby-type T-shirt, white deck-type shoes like an older gentleman would wear, which had perforation holes in them, and maroon socks. She subsequently told him the offender had “scars on his arms” and acne marks on his neck.
On June 5, Officer Roberts was on routine patrol in the 2800 block of Broadway when his attention was drawn to defendant by his white shoes with perforated holes, and he also noticed that he resembled the description of the person who had raped complainant. When he arrested defendant, he noticed a small, very thin scar on his right elbow about 1k- or bk-inch in length. His police report shows that complainant told him her assailant had scars on both arms, but there is nothing in his report to indicate that she told him of any marks on his face or neck or that he was wearing eyelet shoes.
Detective Richards testified that on June 5 he showed complainant seven photographs from one of which she identified defendant as her assailant. Later that day, she identified defendant in a lineup. Subsequently, he interviewed defendant, who said that on June 1, he was on the south side of Chicago as a member of a magazine crew working out of Gary, Indiana, and that he had not been on the north side that day. He also told Richards that the shoes he was wearing when arrested on June 5 had been purchased by him in Gary on the morning of June 4, when he left during the breakfast meeting of the crew and returned with the new shoes. During the interview, Richards noticed that defendant had bumps under his chin.
Richards also said that defendant told him he worked for American Community Services and was living in a motel in Gary. He obtained a warrant and searched defendant’s room, but did not find any of the property complainant said had been taken from her apartment nor any of the clothing she said her assailant was wearing.
Robert Parker, of Gardena, California, who for eight years had been sales manager for American Community Services, Inc., a company selling magazine subscriptions to the general public, testified for the defense that in June 1982, the company had a sales staff of about 100 staying at the Sheraton motel in Gary. All of the staff were required to attend meetings at 7:30 a.m. every morning and a roll call was taken to assure their presence. After the meeting, which lasted about two hours, he usually would take a group of 10 to breakfast before driving them to the area they were assigned to work. The salesmen were required to wear a shirt and tie and were checked every day for compliance therewith. He stated that on June 1, 1982, the staff—including defendant—attended the 7:30 a.m. meeting, which lasted until about 9:30 a.m., and he then took defendant, who was wearing the required shirt and tie, and nine other staff members to a restaurant in Gary for breakfast—after which he dropped off defendant and Kim Brownlee at 95th and Western Avenue, in Chicago, about noon. At 4 p.m., he drove them to a different location to work until 7:30 p.m., when he returned and then drove them back to Gary. He stated that at breakfast on the morning of June 4, 1982, he gave defendant a $20 salary advance with which he purchased a pair of white shoes. Defendant returned with them while they were still at breakfast. He obtained a receipt from defendant for the $20, which he gave the person who checked defendant in that day. He also testified that defendant did not own an automobile and did not have one that day.
Kimberlee Brownlee, from St. Louis, Missouri, a sales representative for American Community Services for three years, testified that on June 1, 1982, her group was staying at a motel in Gary, Indiana, and working the Chicago area. She attended the 7:30 a.m. meeting that morning, then went to breakfast with Robert Parker, defendant—whom she had known for one year at that time—and other sales people. Parker then drove them to Chicago, dropping her and defendant off about noon on Western Avenue in Chicago. They had never worked together before and, although they were supposed to work opposite sides of the street, they decided to stay with each other for about an hour so they could hear each other’s sales pitches. They then split up, and she next saw defendant at the 4 p.m. pickup. Brownlee said that defendant was wearing a shirt and tie on that day.
Jan Lawler testified that on June 1, 1982, she was in the yard of her house at 10149 South Leavitt—two blocks west of Western Avenue and approximately seven blocks south of 95th Street—when sometime between 12:15 and 1:30 p.m. defendant approached her carrying a clipboard. He introduced himself and explained he was selling magazine subscriptions. She bought a $25 subscription to the Ladies Home Journal from him and testified that he was wearing a white short-sleeve shirt which was clean but frayed, with a tie hanging from an open collar, and dark pants with frayed cuffs. She saw no marks of any kind on his face or neck.
Defendant, who stated he was from Dayton, Ohio, testified that on June 1, 1982, he had been employed for one year as a salesman for American Community Services and had never been in the Chicago area prior to May 1982. On June 1, 1982, he was staying with other employees at the Sheraton motel in Gary, Indiana, and working the Chicago area. He was dressed in accordance with company regulations, which included “a tie, a nice pair of slacks, a nice decent shirt and clean pair of shoes.” He attended the morning meeting which lasted from 7:30 to 9:30 a.m., after which his supervisor Robert Parker drove his group to a restaurant. After breakfast, Parker drove the group to Chicago, where he and Brownlee decided to work together for a time before they separated. Defendant made only one sale on his own that day—to Mrs. Lawler.
Defendant also stated that on June 4, 1982, he had been driven by Parker to the area of Addison and Broadway in Chicago, but was arrested about 12:30 p.m., after he worked for about one-half hour, and was charged with disorderly conduct for allegedly having urinated near an apartment building. He was released from custody around 7:30 or 8 a.m. on June 5 and was walking down Broadway, back to the place where Parker had dropped him off on June 4, when he was arrested. At that time, he was wearing the white shoes which he had purchased on the morning of June 4 in Gary with a $20 advance from Parker. Defendant also testified that he was unfamiliar with the Chicago expressways and would not know how to get from Barry and Sheridan to 102nd and Leavitt, although he said that he had worked on Sheridan Road on May 27, 1982. He said that he had no car, and he denied owning a rugby shirt or maroon socks, but admitted having a scar on his right elbow, and he explained that the marks on his face on June 5 resulted from his not having shaved since the day prior, but that they were not on his face on June 1.
Following closing argument, defendant was found guilty, and when his motion for a new trial was denied, this appeal followed.
Opinion
I
It is essentially the contention of defendant that the time references in the uncontradicted testimony of Parker, Brownlee and Lawler support his position that he was not the person who committed the offenses charged on June 1, 1983. In this regard, we initially note that complainant said her assailant left her apartment at 440 West Barry (3300 North) at 11:40 a.m., and that she then watched him through her window, walking down the street towards Sheridan Road. However, both Parker and Brownlee testified that they were with defendant from 7:30 a.m. in Gary, Indiana, until Parker dropped him and Brownlee off at 95th and Western (2400 West) at noon on that day. Brownlee also stated that after they were dropped off, she worked with defendant for about an hour. Their testimony thus accounts for the presence of defendant on that day from 7:30 a.m. until about 1 p.m., and Lawler testified that it was between 12:15 and 1:30 that defendant walked into her yard at 10149 South Leavitt (close to seven blocks north of 95th and two blocks west of Western) and sold her a $25 subscription to the Ladies Home Journal. Documents produced clearly establish that this purchase was made from defendant. In addition, Parker testified that defendant did not own an automobile on June 1, 1983, and did not have one on that day.
The trial judge stated he belief that Lawler was an “impartial, honest and sincere type witness,” and, although he made no statement concerning Brownlee, he also said he did not disbelieve Parker but thought he “could have been mistaken about some of the time period,” and on that basis he concluded that “there would have been sufficient time from the time he committed the occurrence to get back to that area [95th and Western] whether it be a half hour or whether it be 40 minutes.” There is, however, nothing in the record to support his conclusions as to the time he said it would take to drive that distance or from which it could even be inferred that defendant could somehow have left 440 West Barry at 11:40 a.m. and arrived at the Lawler residence at 102nd and Leavitt between 12:15 and 1:30 p.m.
Parker, a 12-year employee and sales manager of American Community Services, testified that defendant did not own an automobile and did not have one on June 1, and both he and Brownlee—a three-year employee of that company—testified that they were with defendant from 7:30 a.m. until he was dropped off at noon at 95th and Western; Brownlee also testified that she worked with him for another hour. It is clear that on the basis of the uncontradicted testimony of Parker, Brownlee and Lawler it would have been impossible for defendant to have committed the offenses.
The only fault the court found with the testimony of any of these three witnesses was the possibility that Parker may have been mistaken about the time he dropped defendant off. However, to accept the conclusion of the court—that defendant committed the crimes—it would have to be assumed that Parker dropped him off at 95th and Western at about 9 a.m., since complainant stated she first observed the assailant in her apartment building between 10 and 10:30 a.m. It would also have to be assumed (a) that after defendant was dropped off, he somehow obtained an automobile and went directly to 440 West Barry Avenue for a purpose not related to complainant, since it is not likely he would have known she would be there, as she had just returned from a trip to Cincinnati; (b) that he had or somehow obtained different clothing and changed into them in the car; (c) that after leaving complainant’s apartment at 11:40 a.m., he drove back to the 95th and Western area, changed his clothing again in the car, and walked into the Lawler yard, about nine blocks from 95th and Western between 12:15 and 1:30 p.m.; (d) that he abandoned the car, since Parker drove him back to Gary that night; and (e) that between June 1 and June 5, defendant was able to somehow dispose of the change of clothing and the thousands of dollars of jewelry and other articles complainant said were taken from her by her assailant, since he did not have them when at the Lawler residence and none were found in the search of his room by the police. There is no support in the record for any of these assumptions, nor is there—as stated above—any basis for the conclusions of the trial court that defendant could have left complainant’s apartment at 11:40 a.m. and arrived at the Lawler residence between 12:15 and 1:30 p.m.
While the uncorroborated identification testimony of a single witness, as is the case here, if it is positive and the witness credible, is sufficient to convict (People v. Gardner (1966), 35 Ill. 2d 564, 221 N.E.2d 232), “evidence fairly tending to establish an alibi cannot be disregarded where the only evidence contradicting it rests upon the identity of the defendant as the man who committed the crime charged, and if, from the entire record, there is a reasonable doubt of the guilt of the defendant because of the uncertainty of the identification, the conviction cannot stand.” People v. Kidd (1951), 410 Ill. 271, 279.
In this case, the identification of the defendant as the assailant is not only negated by the unimpeached alibi testimony, but it is also weakened by a number of factors. First, complainant told Officer Roberts that her assailant was wearing a blue jacket, blue jeans, and a rugby-type T-shirt, yellow and blue in color; whereas Parker, Brownlee and Lawler all testified that defendant was wearing a white shirt and tie, which he was required by his employer to wear. While the trial court opined that defendant could have changed his clothing in the automobile he used that day, there is again nothing in the record indicating that he had clothing of the type worn by the assailant, and no such clothing was found in the search of his motel room. Second, it was complainant’s testimony that she told Officer Roberts on June 1 that her assailant had what appeared to be “an acne running down his chin and his neck *** his chin line, lower chin line, down the neck, down by the ears”; however, neither the police report of Roberts nor his broadcast of her description made any reference to such a condition, and no other witness testified to a similar condition. Officer Richards, in his June 5 arrest report, stated only that defendant had “bumps on his neck.”
Moreover, while neither Parker nor Brownlee were asked about any marks on his face or neck, Lawler—who was with defendant about 30 minutes—said that she saw no marks on his face or neck. Defendant testified that the bumps on his neck, seen by Officer Roberts, were a shaving rash. In any event, there is nothing in the record, other than complainant’s statement, that defendant on June 1 had an acne or similar condition running from his chin line to his ears. Third, complainant told Roberts in a later interview (some unknown time after the first interview on June 1) that her assailant “had scars on his arms.” There is nothing to this effect in Roberts’ police report, and Officer Richards’ arrest report of June 5 shows that defendant had only a very thin 1U- or Ife-inch scar on his right elbow. Fourth, while complainant testified that the shoes defendant was wearing on June 5 were the same as those worn by her assailant on June 1, she also told Roberts that her assailant was wearing “a pair of white-beige eyelet tied shoes”; whereas, Roberts testified that when defendant was arrested on June 5, he was wearing white shoes with perforations, and there is nothing in the record to indicate that he was wearing eyelet shoes on June 5.1 Moreover, defendant testified that the shoes he was wearing on June 5 had been purchased in Gary on the morning of June 4, before he was driven to his assigned work area, and that they were bought with a $20 advance he received from Parker for that purpose. Parker had previously testified that he made a salary advance of $20 to defendant while they were at breakfast on June 4, for the purchase of a pair of shoes, and that defendant returned to the restaurant wearing the new shoes. Fifth, complainant, in describing her assailant to the police and at trial, did not mention that he had a voice defect, and the trial judge made a statement for the record that defendant had a noticeable speech impediment. Sixth, complainant described her assailant as a dark-complected black male, whereas the trial judge noted his opinion that defendant was of “medium or a lighter complexion.” Seventh, the assailant was in complainant’s apartment for about one hour, and although an officer told defendant that fingerprints were found in her apartment, there was no testimony that they were defendant’s. Eighth, defendant’s testimony was unimpeached, contradicted only by complainant’s identification of him.
While it is true, as the State points out, that the trier of fact is not obligated to believe alibi testimony (People v. Dotson (1981), 99 Ill. App. 3d 117, 424 N.E.2d 1319), as stated above, the trial court here made no statement to the effect that he did not believe the testimony of any of the alibi witnesses. To the contrary, he stated that Lawler was an “impartial, honest and sincere witness” and that he did not disbelieve Parker—stating only that he believed Parker was mistaken about the time he dropped off defendant.
In the light of the above, it is the belief of the majority here, from an examination of the entire record, that there is reasonable doubt as to defendant’s guilt.2 Cf. People v. McGee (1961), 21 Ill. 2d 440, 173 N.E.2d 434.
For the reasons stated, the judgment is reversed.
Reversed.
The shoes received in evidence and identified by complainant as having been worn by her assailant are not included in the record.
Justice Sullivan, contrary to the conclusion in the concurring opinion, finds that the evidence is sufficient to prove that a rape occurred but believes there is insufficient evidence to prove that it was committed by this defendant.