APPEAL from the Circuit Court of Warren County; the Hon. JACK
R. KIRKPATRICK, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the circuit court of Warren County finding the defendant, Edmond L. Smith, guilty of burglary and aggravated assault.
Edmond L. Smith was charged with placing Susan Earp in reasonable apprehension of receiving a battery by pointing a gun at her.
The State presented five witnesses: Sharon Patch, Susan Earp, Terry Flanagan, Susan Muth, and Deputy Breuer.
Sharon Patch testified that on the evening of August 9, 1975, Susan Earp was baby-sitting with the Patch children at their home in Roseville, Illinois. Mr. and Mrs. Patch were at a party. Mrs. Patch did not authorize the defendant to enter her home.
Susan Earp testified that she had fallen asleep on a chair in the living room of the Patch home. Shortly after 2 a.m. she was awakened by a man armed with a gun who wore a nylon stocking over his head. She testified that the gun carried by the intruder was scratched. She also testified that although she did not at first think that the gun was real, she later changed her mind when she got a closer look at it. She did not feel that her assailant would harm her with the weapon at the beginning of the incident when she was assaulted as she was lying down, but she later felt the man would harm her. Her testimony regarding the use of the gun by her assailant after she arose from where she had been lying down was only that he did not directly point the gun at her after she got up. The man asked her to take her top off, but she refused. He asked her about money. He subsequently went into the kitchen. While this man was in the kitchen, Susan went upstairs. Then some men arrived at the Patch home. She told them about her intruder, but he had already left.
A few days later Susan was shown some photographs by a police officer and she identified a man pictured in one of them as her assailant. That man was not Edmond Smith. She was also shown some photographs of male chests and did identify one of the chests as that of her assailant, although she was not positive. The chest was that of Edmond Smith.
Terry Flanagan testified that he lived one block north of the Patch home. During the early morning hours of August 10, 1975, he was awakened by his sister-in-law who told him a strange station wagon was parked in front of his home and that a man had just gotten out of it. Flanagan went to investigate the auto, opening its passenger door and looking inside. He noted the make and model. Then a man appeared and entered the auto. Flanagan described the man as having either a burr haircut or something on top of his head which appeared to mat down his hair, but was not a hat. Flanagan had seen the man running back to his car, hunched over, holding his clothes together and his pants up with one hand and carrying an object in the other hand. Flanagan asked the man where he had been. The man said that he had been visiting the neighbors and then drove away.
A few days later at the police station Flanagan, who was aware that a suspect in the Patch incident was in custody, viewed a photo lineup and identified Edmond Smith as the man whom he had seen in the street during the early morning of August 10, 1975. Flanagan did note that the photograph of Edmond Smith was the only one in the group of six which even resembled the description he had given to the police. Flanagan also made an in-court identification of Edmond Smith.
Susan Muth, Flanagan's sister-in-law, testified that she also identified Edmond Smith as the man whom she had seen.
Deputy Breuer testified that he had served a search warrant on Edmond Smith at his home in Eureka. Smith was found to be in possession of an auto similar to that seen by Flanagan and Muth in Roseville. A scratched .22 caliber revolver and a nylon stocking were also found in Smith's house. Upon inquiry by police and after appropriate warnings, Smith admitted that he owned the car, but said that neither his car nor himself had been in Roseville and that he was at home with his wife during the early morning hours of August 10, 1975.
The defense presented no evidence. The defendant had waived his right to jury trial. He was found guilty by the court of burglary and aggravated assault. His motion for a new trial was denied.
The defendant raised two issues on appeal:
(1) Where the sole identification of the defendant as the perpetrator of the instant offenses was highly unreliable because of the nature of the criterion employed in making ...