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People v. Nuccio

OPINION FILED MARCH 20, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

RICHARD NUCCIO, APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FELIX M. BUOSCIO, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Richard Nuccio, who was a Chicago police officer at the time of the events described in this appeal, has appealed directly to this court after his conviction for murder in the circuit court of Cook County.

He complains that reversible error was committed by the trial court in allowing the prosecution 13 peremptory challenges, contrary to the provisions of section 115-4(e) of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 115-4(e); that the court erroneously refused to question the jurors regarding allegations of jury "contamination" he made in a post-trial motion; that his trial was rendered unfair by prejudicial comments by the prosecutor in closing argument; that the prosecution knowingly offered false and prejudicial testimony; and that the evidence was insufficient to prove him guilty of murder beyond a reasonable doubt.

The defendant's trial took place in October, 1970, following our reversal in November, 1969, of an earlier conviction on the same charge (People v. Nuccio, 43 Ill.2d 375). Our reversal of that conviction, which followed a bench trial, was on the ground that unsupported, prejudicial insinuations against the defendant had erroneously been permitted. 43 Ill.2d 375, 395.

Language in our earlier opinion is applicable here:

"The testimony is voluminous and conflicting, with few matters undisputed. It is clear, however, that the event in question occurred on the night of June 4, 1968, in an alley near a large parking area opposite Wrigley Field in Chicago. This parking area was bounded on the north by Patterson Avenue, on the east by Clark Street, on the south by Addison Street, and on the west by an alley running diagonally north and south between Patterson Avenue and Addison Street. Near its mid-point this alley was intersected by an east-west alley, and the intersection of these two alleys was lighted by an overhead light attached to a pole. The Franksville Restaurant was located at the southwest corner of this parking area, and a Tastee-Freez Ice Cream stand was at the northeast end surrounded by parking area. Driveways led into the area from Patterson Avenue and from Clark and Madison Streets." 43 Ill.2d 375, 376-7.

At about 9:30 P.M. on June 4, 1968, the defendant and Ronald Rothmund, Chicago police officers, were on patrol in a marked squad car when they received a radio report of a disturbance in the parking lot across from Wrigley Field. Answering the call, they drove into the parking area and parked the squad car near the ice-cream stand. They were joined by two other Chicago police officers, Ronald Hyatt and Joseph Sand, who had responded to the same radio message. Hyatt and Sand were in civilian clothes.

The defendant walked to a group of young persons who were standing in front of the Tastee Freez. There he searched John Ahrens, one of the group. Rothmund walked to the Franksville Restaurant where he met Ben Citron, its owner, who had phoned in the complaint which the police had come to investigate. Citron testified that he had observed Ronald Nelson sitting at one of the outside tables at his restaurant playing with a knife, and that he had called the police. Although Nelson was not causing any disturbance and the blade of the knife was not exposed, Citron testified that he was apprehensive, because several months earlier Nelson had created a disturbance in the restaurant and had struck him. Citron had filed a complaint against Nelson, and a juvenile court judge had ordered Nelson to stay away from the restaurant. Citron testified that when he called the police on this occasion he said only that some young persons were causing a disturbance. He did not say that a youth was in his restaurant in violation of the judge's order, nor did he mention the knife. Citron testified he did not tell Officer Rothmund about the knife when he met him at the door. He said that when he met Rothmund he pointed to a youth, Steven Austill, who was walking towards the southwest corner of the parking area, and said, "there's one"; he then pointed towards the table where Nelson was sitting, and said, "that's another one."

Both Rothmund and Citron, the latter a defense witness, testified that Nelson was alone at the table. Rothmund testified that he observed a knife with an opened blade in Nelson's hands, but Citron could not recall seeing a knife in Nelson's possession at this time.

Trena Kelley, however, who was a 16-year-old high school senior at the time of the incident, testified that she was sitting at the table with Nelson when Citron spoke with Rothmund, that she observed Nelson's hands, that he was not holding a knife, and that she had not seen a knife in his possession any time that evening. Leonard Noe testified that he observed Nelson and Trena Kelley sitting together, that he noticed Nelson's hands and that Nelson did not have a knife.

After Citron pointed towards Nelson, Rothmund moved toward him. At that, Nelson jumped up and ran. Rothmund testified that he shouted, "Get him" or "Grab him." "Watch out, he has a knife" or "He's got a knife." Officers Sand and Hyatt and the defendant testified they heard Rothmund cry that Nelson had a knife. Citron, who had just re-entered the restaurant after pointing out Nelson, testified that he did not hear Rothmund say anything. Six other witnesses, who were called by the prosecution, testified that they heard Rothmund shout, "stop him," but that they did not hear him say anything about a knife. A seventh prosecution witness, Noel Kitchen, testified that he could not be certain whether Rothmund shouted "stop him" or "shoot him," but he was certain he had not heard him say that Nelson had a knife.

The defendant was searching John Ahrens, he said, when he heard Rothmund's shout. Officer Ronald Hyatt testified that he chased Nelson in a northwesterly direction until Nelson turned west into the east-west alley at the point of intersection between the north-south and east-west alleys. There the defendant joined in the chase. According to the testimony of Hyatt and the defendant, they were pursuing Nelson in the east-west alley, and when they were about 40 feet to the west of the junction of the two alleys, Hyatt noticed that Nelson was about to throw a knife and shouted: "Watch out, he's going to throw the knife."

The defendant testified that Nelson turned to throw the knife and that as he released the knife he, the defendant, dropped almost to one knee, drawing his weapon as he did so, and fired. Nelson fell to the ground when the shot was fired, got up and started towards Hyatt and the defendant, and then collapsed. When the patrol wagon arrived, Nelson was placed on a stretcher and taken to the hospital. Hyatt testified that Nelson, who had been running at top speed, was in the act of running when he threw the knife. Hyatt also stated that the knife landed behind the defendant, and he picked it up. He identified a knife with a 3-to-3 1/2-inch blade and a brown and tan handle as the one he had recovered.

Officer Rothmund testified that after he called to the other officers to stop Nelson, he turned in the opposite direction, and proceeded towards Steven Austill, and placed him under ...


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