¶1dissenting:
¶2I respectfully disagree with the conclusion reached by the majority and would reverse defendant’s conviction, based upon my belief that the State did not prove him guilty beyond a reasonable doubt.
¶3The basic conflict in the evidence in this case lies between the State’s identification testimony pointing to defendant as the perpetrator of the brutal attack on complainant, and the alibi defense, placing defendant a mile and a half away during the time of the commission of the offense. My review of the record leads me to conclude that the State failed to effectively impeach the exceptionally strong alibi evidence presented in this case. I further find that the identification testimony was weakened in certain crucial respects.
¶4Defendant’s alibi was corroborated by two articles of physical evidence, namely, the attendance sheet for the 7 p.m. class bearing defendant’s signature, and a bus transfer that was issued between 7:45 and 8 p.m. on the night of the attack. The admission of the attendance and sign-in sheets was stipulated to by the State. At the top of the sign-in sheet, the notation “GED-Math Sci 11/12-7:00-602” appears. The State did not attempt to prove that defendant signed in before 7 p.m. as it could have through the testimony of other students, and the fact that defendant’s signature appears on the sheet on the second line from the bottom buttresses his account that he signed in at 7 p.m. or shortly thereafter. The following remarks made by the trial judge, prior to denying defendant’s motion for a new trial, reflect that even he believed this aspect of defendant’s account of events:
“Regarding the alibi 9 9 9 I did not disregard the school records. 9 9 9 [Tjhere is no corroboration as to where the defendant was between 7 and 7:30, the alleged rape having occurred somewhere after 7, somewhere before 7:30.”
¶5My colleagues on the majority also seem to concur that at 7 p.m. on the night of the attack, defendant was at Jones Commercial High School. However they state, “[assuming, however, that defendant did sign that sheet at 7:00, he was in no way prevented thereby from being at the scene of the crime at 7:10, when the complainant testified that it occurred.”
¶6As the majority correctly points out, according to the complainant’s testimony on direct, the attack occurred at approximately 7:10 p.m. However during cross-examination she testified that the attack occurred at 7:05 p.m. Since she also testified that the rape occurred shortly after she walked down the length of the hallway from her class, which concluded at 7, it is probable that the attack occurred closer to 7:05. Brown, the bus driver, testified that it was an eight-minute bus ride from the location of Jones Commercial High School to Harrison and Halsted, where defendant was accosted by police and arrested. The attack occurred even two blocks further away inside a building at Harrison and Morgan which adds even more time to defendant’s travels. According to the State’s version of defendant’s activities, he signed in his class at 7 p.m. or shortly thereafter, walked outside, immediately caught a westbound bus, alighted, walked two blocks further to the Behavioral Science Building of the University of Illinois, spotted his victim, watched her a few minutes, and began his attack at 7:10. Although the majority seems to believe that this sequence of events could have physically occurred within 10 minutes, I have grave reservations. My doubts are further exacerbated by the probability that only 5 minutes had elapsed between defendant’s alleged departure from school and the time of the attack, if one were to accept complainant’s testimony during cross-examination. Even ■ more disconcerting than the time constraints, is the State’s utter failure of proof in this regard. The State’s version is based on mere speculation and falls far short of the evidence necessary for proof beyond a reasonable doubt.
¶7On the other hand, defendant’s account of his activities is plausible and remains unimpeached. He testified that he left school at 7:30, walked to a liquor store and purchased the bottle of wine that was later found on his person, and then caught a westbound bus that put him on the comer of Harrison and Halsted at 7:50 p.m. Defendant’s departure time from school was corroborated by Cobb who remained unimpeached. The State failed to introduce the testimony of other students who could have countered defendant’s and Cobb’s accounts of when defendant left class. In People v. Claudio (1971), 3 Ill. App. 3d 309, 279 N.E.2d 39, the court was impressed with defendant’s alibi, corroborated by his employment records, which put him at work during the day and hours in question. Although the attendance sheet in the instant case put defendant at school 10 minutes at most before the time of the attack, I find that, given the distance he had to travel, by bus and by foot, it lends great support to his alibi.
¶8The majority suggests that defendant’s alibi is somehow discredited by his admission that the night in question was the only time he took a bus, deviating from his habit of taking the Dan Ryan “L”. However, the majority ignores the fact that defendant only began school the week before and thus did not yet have a long standing practice of taking one form of transportation over another.
¶9Furthermore, a bus transfer, stamped “8:00 p.m.,” was found on defendant’s person when he was arrested. Brown, who issued the transfer, testified that he rounded the time that he punched the transfer to the next M hour in accordance with CTA practice. Therefore, the transfer was issued between 7:45 and 8:00 p.m. It is less plausible that defendant caught a bus, purchased a transfer and deboarded two blocks later within the same area that he committed a crime as the State would propose, and the majority would believe, than that he caught a bus at approximately 7:45 p.m. near school, purchased a transfer and rode to Harrison and Halsted in anticipation of transferring to a southbound bus which would take him home. According to Officer Atwood, he even told the police when he was arrested that he was en route from Jones Commercial High School to his home. Similarly, in People v. Gardner (1966), 35 Ill. 2d 564, 221 N.E.2d 232, the court found defendant’s alibi of going to a movie to be corroborated by an unimpeachable source when ticket stubs were found in defendant’s pocket and the theatre manager testified that the stubs were issued between certain times.
¶10In addition to the strong alibi evidence, I believe the identification testimony in this case was weakened in certain respects. As the majority states,
“The test of a positive identification is whether the witness was close enough to the identified person for a sufficient length of time under adequate conditions to observe and later make an identification. (People v. Canale (1972), 52 Ill. 2d 107, 285 N.E.2d 133; In re Williams (1974), 24 Ill. App. 3d 593, 321 N.E.2d 281.)”
¶11Liebovitz’s opportunity to observe the assailant was of a short duration and limited in scope, in that only the man’s face and shirt were exposed at the time. In fact, at the preliminary hearing, he testified that he only caught a “glimpse” of the man’s face. He was also mistaken as to the material and length of defendant’s coat as he realized at the lineup. (See People v. McGee (1961), 21 Ill. 2d 440, 173 N.E.2d434.) Even the majority seems to partially explain Liebovitz’s error in the description of the jacket by the fact that “defendant wore the jacket pulled up over his head as he ran by Liebovitz.” This could hardly be said to be the optimum opportunity by which to view a person for purposes of an identification.
¶12Although according to complainant’s testimony at trial, her opportunity to observe her attacker’s face and clothing was certainly longer than Liebovitz’s, her credibility is weakened by her failure to inform the police, shortly after the attack, of her ability to directly view her assailant for a few minutes. At trial, she stated that after the first few minutes in the foyer, she never viewed her assailant’s face again because she was ordered to cover her head with her coat. Given the fact that complainant had no particular reason to examine the physical characteristics of her assailant prior to the attack (People v. Reese (1973), 14 Ill. App. 3d 1049, 303 N.E.2d 814), and she was completely unable to see him during the course of the attack, I disagree with the majority that the circumstances here afforded complainant a favorable opportunity for a clear and positive identification of defendant as her attacker. (People v. Thompson (1970), 121 Ill. App. 2d 163, 257 N.E.2d 197.) I further mention that complainant described defendant primarily by his clothing and height and not by his facial characteristics which further weakens her identification of defendant. See People v. McGee (1961), 21 Ill. 2d 440, 173 N.E.2d 434.
¶13Although identification on the basis of clothing is entitled to some weight (People v. McGee (1961), 21 Ill. 2d 440, 173 N.E.2d 434), even this aspect of complainant’s identification testimony was weakened. Complainant was positive that her assailant wore a blue wool knit hat, although she acknowledged that defendant wore a red knit cap in the lineup that evening. Although mere discrepancies in description are not enough to raise a reasonable doubt of guilt (People v. Reedus (1977), 46 Ill. App. 3d 427, 361 N.E.2d 33; People v. Witherspoon (1975), 33 Ill. App. 3d 12, 337 N.E.2d 454), here, given the totality of the evidence, the disparity in the color of the hat is of some significance. A perusal of the lineup photograph in this case, shows that defendant was wearing a bright red cap. To account for the two different colored caps, defendant would have had to change hats after the attack and dispose of the blue one, since he had only one cap when he was arrested. As with many of the other explanations that one would have to accept to affirm defendant’s guilt, I believe the explanation of innocence is far more reasonable.
¶14As in People v. Gardner (1966), 35 Ill. 2d 564, 221 N.E.2d 232, where our supreme court reversed defendant’s conviction for rape, the only link between defendant and the crime, aside from the identification testimony, was his proximity to the location of the attack shortly after it occurred. In Gardner, as here, the identification testimony was weakened in part by discrepancies in clothing description. Finally, in both cases, defendant had an alibi, corroborated by strong and even more importantly, unimpeached physical evidence.
¶15Finally, in several of the cases where the courts have reversed convictions for rape on the basis of less than strong identification, and unimpeached alibis, the alibis offered were not corroborated by physical evidence and were far less convincing than the one presented in the case at bar. Compare People v. Reese (1973), 14 Ill. App. 3d 1049, 303 N.E.2d 814; People v. Moore (1973), 12 Ill. App. 3d 78, 298 N.E.2d 202; People v. Adams (1969), 115 Ill. App. 2d 360, 253 N.E.2d 23; People v. Appleby (1968), 104 Ill. App. 2d 207, 244 N.E.2d 395.
¶16I would reverse defendant’s conviction in this case. Accordingly, I dissent from the decision reached by the majority here.