People v. Nims, 85-1707

Decision Date12 December 1986
Docket NumberNo. 85-1707,85-1707
Citation106 Ill.Dec. 123,156 Ill.App.3d 115,505 N.E.2d 670
Parties, 106 Ill.Dec. 123 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bruce NIMS, a/k/a Bruce Marico, a/k/a Bruce Nimes, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Anselmo & Schwarzbach, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County (Joan S. Cherry, Kenneth T. McCurry and Sharon L. Gaull, of counsel), for plaintiff-appellee.

Presiding Justice SULLIVAN delivered the modified opinion of the court upon denial of defendant's petition for Rehearing:

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 spermatazoa 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.

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, 19 Ill.Dec. 443, 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, 78 Ill.Dec. 642, 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; People v. Mendoza.) 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, 164-65, 78 Ill.Dec. 642, 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.

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 1 do reveal a "knot" or bump above his right eye and a small scar above his...

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