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People v. Nudo

APRIL 16, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES OLIVER NUDO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Sangamon County; the Hon. HOWARD LEE WHITE, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

This is an appeal by the defendant from a conviction of armed robbery in a jury trial and a sentence to the penitentiary for a term of not less than ten nor more than thirty years. The defendant did not testify. His connection with the robbery depends upon the integrity of the identification made of him by the two girls who were in the liquor store at the time of the robbery.

The robbery occurred about 8 P.M. Both girls were within a couple of feet of the robber at one or more times and the establishment was well lighted. Mary Cox was at the check-out counter and the defendant came to that counter two or three times before she started to add up and ring up. At this point, he pointed a gun at her and demanded and received the bills in the cash register. Mary then alerted Lana Altabaugh that a robbery had taken place and the police and the owner of the liquor store were called. Both girls gave a description of the robber to the police on their arrival.

Mary Cox testified, "Yes, and by that description, they said they thought they knew who it was and they took us to the police station and the first picture they showed us, we identified." Defense counsel requested a repetition and she then said, "They asked us to give an identification and so both of us gave an identification and then they said they thought they knew who it was, and they took us to the police station and the first picture we looked at was the one we identified. We didn't have to look at any more pictures; we knew who it was". On cross-examination she was asked whether or not she had made this identification after the police officers said, "we have the man who did this". She answered, "No, he didn't say they had the man; he said they thought they knew who it was".

"Q. They thought they knew, and they gave you one picture and had you look at it?

A. Yes.

Q. Is the basis of your identification here in court based upon this photographic identification?

A. No, not altogether.

Q. Was it partially?

A. I wouldn't say that, no."

Lana Altabaugh testified that she talked to the defendant two or three times, once at the freezer counter and once near the meat case and again at the back of the store. When the police came she gave a description of the defendant, and shortly got in the car and went down to the police station and was shown the photograph. This was some ten or fifteen minutes after the occurrence. On cross-examination she was asked:

"Q. Did you have an independent recollection of the description of the defendant?

A. I will never forget what he looked like.

Q. And you made an identification from a photograph, is that correct?

A. Yes, I did.

Q. This was made after the police officer said, `We think we have the man', is that right?

A. No, they didn't say it was him.

Q. They thought he was a suspect, right?

A. Yes.

Q. And they showed you one picture?

A. Yes."

On redirect, she was ...


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