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March 7, 1997


Appeal from the Circuit Court of Cook County. Honorable Paul J. Nealis, Judge Presiding.

Released for Publication April 24, 1997. Certiorari Denied October 14, 1997,

Presiding Justice Greiman delivered the opinion of the court. Zwick, J., concurs. Theis, J., concurs in part and dissents in part.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Brian Montefolka (defendant) was convicted by a jury of home invasion, residential burglary and attempted aggravated criminal sexual assault. Defendant was sentenced to 10 years' imprisonment for home invasion, 7 years for residential burglary, and 10 years for attempted aggravated criminal sexual assault, to be served concurrently. Defendant appeals, raising issues as to whether: (1) the post-crime "showup" was unfairly suggestive; (2) the State should have been allowed to amend the home invasion count; (3) defendant was proven guilty of the offenses beyond a reasonable doubt; (4) the trial court erred in refusing defendant's Telfaire instruction ( United States v. Telfaire, 152 U.S. App. D.C. 146, 469 F.2d 552 (D.C. Cir. 1972)); and (5) the State's comments during closing argument were improper. For the reasons that follow, we affirm in part and reverse in part.

The victim, Suzanne Bush (Bush), testified that she is 49 years of age and lives in Oak Forest, Illinois. On September 12, 1993, at approximately 4:30 a.m., Bush was sleeping in her upstairs bedroom when she was awakened by her dog's whining and went downstairs dressed in a nightshirt and underwear. Once downstairs, she observed defendant petting her dog. Although the interior of her home was not lighted, Bush was able to see defendant clearly in the light from neighboring homes.

Bush asked defendant who he was and what he was doing in her house. He identified himself as Bill Johnson and responded that he did not think she was home and that if she did not try anything, he would not hurt her.

Bush ignored this admonition and ran screaming to the front door. Defendant caught her at the door, placed her in a headlock and dragged her by the neck into the living room. Defendant threw her to the floor and a struggle ensued. Defendant's face was "inches" from her own.

During the struggle, defendant told Bush to take off her underwear. Bush continued to struggle, but the more she fought, the more defendant hurt her. Defendant continued choking her and again told her to take off her underwear. Bush again refused and the two continued to struggle.

Finally, Bush was able to engage defendant in conversation, asking him how and why he had broken into her home. Defendant responded that he needed money for his family and had entered through an unlocked window. Bush could smell alcohol and cigarettes on defendant's breath. She asked defendant if he would leave if she gave him some money. Defendant said "yes" and Bush gave him between $10 and $60 from the kitchen counter. Bush promised not to call the police and walked defendant to the front door, locking it upon his exit.

Bush then dressed and crossed to a neighbor's house, where the police were summoned. Bush described defendant to the police as a male, possibly Hispanic, 5 feet 4 inches tall, 150 pounds with dark hair, a light mustache and sideburns, and wearing a dark "White Sox" T-shirt, brown leather jacket, baseball cap on backwards and blue jeans.

Approximately 40 minutes later, the police drove her to a house located a few blocks away in Oak Forest, where they believed they had located Bush's assailant. There was a party at the house and the police brought out eight male guests and walked each around the squad car. Before defendant reached the squad car, Bush identified him and noted that he was no longer wearing his leather jacket or baseball cap. Bush stated that defendant's face "was imbedded in her mind" and would be there for the rest of her life.

Bush returned to her house with the police, who began processing the scene for prints and other evidence. Bush identified pictures of her injuries, including bruises on her neck, arm, knees and shoulder, and blood by her ear, elbow and leg. On cross-examination, Bush testified that defendant did not touch her in a sexual manner, did not take off any of his own clothing, and did not display a weapon.

Shirley Matthay (Matthay), Bush's neighbor, testified that, on September 12, 1993, she was awakened at 4 a.m. by the dog next door. Looking out her bedroom window, she observed a dark red, two-door car parked in front of her house. As was her habit, Matthay went outside with a flashlight and took down the car's license plate number -- UH 2900. Matthay then walked to the police station and reported the "suspicious" vehicle. When Matthay returned, the car was gone.

The Oak Forest police ran a computer check on the license number and discovered that the Mustang was registered to Domingo Montefolka, defendant's father. Officers were dispatched to the Montefolka residence located in the Village of Oak Forest.

Officers Quinn and Badoni arrived at the Montefolka residence and, as Quinn exited his vehicle, he observed a car turn onto Ridgeland Avenue, stop in the middle of the street, and then pull up in front of the house. The vehicle was a red Ford Mustang with license plate number UH 2900.

Quinn approached the driver, identified later as the defendant, and informed him that they were investigating some criminal activity that occurred earlier and that his car was possibly involved. Defendant told the officers that he had been at a party all evening and had loaned his car to Brian Wilson for approximately one half hour. Quinn described defendant as a male Hispanic with a light mustache and sideburns and dark hair who appeared short and weighed about 150 pounds. Defendant was wearing a black T-shirt with "White Sox" written on the front. Quinn did not observe a leather jacket or baseball cap.

Officer Quinn, Badoni and defendant each drove separately to the address which defendant gave as the location of the party he had attended. Defendant walked to the house ahead of the officers. Officer Quinn testified that defendant opened the door, rushed into the house and said, "The cops are here. I have been here all night no matter what. They got me on some shit I did earlier." Following this outburst, the officers handcuffed defendant and placed him in custody.

Quinn was present for the identification and observed defendant, along with eight other male party guests, walk in procession around the squad car in which Bush was seated. Bush immediately identified defendant as her assailant.

Daniel Hession hosted the party and testified that defendant had been at his home for approximately 30 minutes, around midnight, but had been asked to leave because he was "loud and obnoxious." Defendant returned to the party an hour or two later and was again asked to leave. Defendant was wearing jeans and a brown leather jacket.

Defendant was placed under arrest and "Mirandized" by Investigator Shaughnessy at approximately 6:30 a.m. on September 12, 1993. Defendant told Shaughnessy that he "did not do anything" and had left the party only to get cigarettes at around 2 a.m. Shaughnessy took defendant's fingerprints for comparison with the latent lifts he had taken from the scene. The fingerprint and other forensic evidence was inconclusive in terms of identifying defendant as Bush's attacker.

Following closing arguments, defendant was found guilty of home invasion, attempted aggravated criminal sexual assault, and residential burglary, and not guilty of robbery. Defendant argues initially that the trial court erred in denying his motion to suppress evidence of his identification, where the showup was unnecessary and unfairly suggestive.

Specifically, defendant contends that there was no exigent need for the showup and that the procedure employed was highly suggestive of defendant because no other participant was short and "possibly Hispanic." The State maintains that the immediate showup was necessary because the police were looking for a suspect within minutes of the home invasion, burglary and attempted sexual assault. The police were required to act promptly to determine whether defendant was the perpetrator or whether they needed to continue their search. Also, the form of the showup was not unnecessarily suggestive and had a high degree of reliability.

We must determine whether the trial court's decision denying defendant's motion to suppress identification evidence was manifestly erroneous. People v. Smith, 274 Ill. App. 3d 84, 89, 210 Ill. Dec. 749, 653 N.E.2d 944 (1995). We note preliminarily that, although defendant and the trial court characterize the identification procedure as a showup or "hybrid," placing defendant in a group of similarly aged males more closely resembles a lineup. For purposes of our decision, however, this distinction is immaterial, and we will review the trial court's "hybrid" analysis.

An immediate showup near the scene of a crime can be proper. Smith, 274 Ill. App. 3d at 89; People v. Manion, 67 Ill. 2d 564, 10 Ill. Dec. 547, 367 N.E.2d 1313 (1977). Only when a pretrial encounter resulting in identification is 'unnecessarily suggestive' or 'impermissibly suggestive' so as to produce 'a very substantial likelihood of irreparable misidentification' is evidence of that and any subsequent identification excluded under the due process clause. Smith, 274 Ill. App. 3d at 89; People v. Moore, 266 Ill. App. 3d 791, 796-97, 203 Ill. Dec. 883, 640 N.E.2d 1256 (1994). The decision whether to permit a showup identification is based on the following factors: "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." People v. Poole, 167 Ill. App. 3d 7, 14, 117 Ill. Dec. 666, 520 N.E.2d 1017 (1988), quoting Manion, 67 Ill. 2d at 571; Neil v. Biggers, 409 U.S. 188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382 (1972).

In the present case, the facts demonstrate that Bush had ample opportunity to view defendant from a variety of angles. Defendant was facing Bush "at all times," including from such distances as nine inches. Bush engaged in extended conversation with defendant and was close enough to detect beer and cigarettes on his breath. She accompanied him into the kitchen and walked him to the front door.

Bush's description to the police was consistent and highly accurate, the crime and showup took place within an hour of each other, and Bush identified defendant out of a group of eight without hesitation, stating later that she would never forget his face. Bush's identification was inherently reliable and the trial court was correct to deny defendant's motion to suppress identification evidence.

Defendant argues next that the trial court erred by allowing the State to amend he home invasion count against defendant. An individual commits the offense of home invasion when:

"without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present or he or she knowingly enters the dwelling place of another and remains in such dwelling place until he or she knows or has reason to know that one or more persons is present and


intentionally causes any injury to any person or persons within such dwelling place." 720 ILCS ...

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