People v. Nellons

JUSTICE LORENZ,

dissenting:

I respectfully dissent from my colleagues’ majority and specially concurring opinions. I do not find the victim’s identification of defendant to be so uncertain, or her version of events to be so unsatisfactory, as to warrant setting aside the defendant’s conviction. Nor do I believe his alibi was so strong as to require reversal.

The majority relies primarily upon defendant’s alibi, placing him miles from the scene in different clothes, and concludes that the trial court’s resolution of the evidential conflict had no basis in evidence. While true as far as it goes, this conclusion overlooks the factfinder’s prerogative: here, the trial court was entitled to believe both the victim and the alibi witnesses, and still to find as a factual matter that the alibi did not exclude defendant’s committing the crime. (See People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) Reasonable people might differ as to the level of doubt raised by the alibi evidence adduced in this case, but the trial judge resolved the facts against defendant, and I see no basis in the record to discard his finding.

The majority and concurring opinions point out what seem to be myriad inconsistencies in the victim’s testimony. The majority cites identification testimony concerning acne, scars, complexion and speech impediment. Of course, inconsistencies in identification testimony go to the weight of the evidence, decided by the factfinder. (People v. Guyton (1972), 53 Ill. 2d 114, 290 N.E.2d 209.) The victim’s identification, and the trial court’s reliance upon it, were supported by the totality of circumstances, including her opportunity to view the perpetrator, her degree of attention, and the certainty of her identification. (See People v. Manion (1977), 67 Ill. 2d 564, 571, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) I consider the problems cited by the majority to be matters of mere characterization. The “shoe” issue is a red-herring. The fact that defendant bought eyelet shoes on June 4 does not negate the inference that he possessed eyelet shoes on June 1.

Although the concurrence adopts the majority opinion, I believe the opinions are basically incompatible. The majority places defendant at 95th and Western at the time of the crime; the concurrence places him at 440 Barry. The opinions may be reconciled only if one believes that the victim consented, later became angry, and then, inexplicably, identified the wrong man.

Beyond this, the concurrence makes several points which I find unpersuasive. My colleague argues that if the victim’s testimony is believed, then defendant knew where the victim lived, expected that he would arrive simultaneously at her doorway, and believed that she would not flee, scream or find aid nearby. On the contrary, the evidence indicates that the rape occurred on a weekday in the middle of the day. From this, one might infer that many people were at work and few were visibly present at an apartment building. As easily as the concurrence assumes design, one might rather assume that defendant had Margo’s name for some unknown reason and decided to invade the victim’s apartment on impulse.

The concurrence seems to say that the man was too slow and too considerate to be a rapist. Illinois has outlawed all rapes: not just “fast” ones, and not just “cruel” ones. The opinion suggests further that the State did a poor job investigating and prosecuting the case. As may be, the trier of these facts was convinced beyond a reasonable doubt that defendant committed rape.

For the majority to have reached their conclusion, it is obvious that they have reassessed the credibility of witnesses and reweighed the evidence. In this case, the trial judge heard the witnesses’ testimony and observed their demeanor, and he concluded that defendant was guilty of the crime charged. I would affirm the conviction.