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People v. Nunn

OPINION FILED NOVEMBER 20, 1981.

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

v.

JOHNNIE NUNN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN DIVANE, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a bench trial, defendant was convicted of one count of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2) and three counts of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4), and sentenced concurrently on all counts to 10 years' imprisonment. He appeals and contends as follows: (1) the trial court erred in failing to suppress his post-arrest statement elicited in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the pretrial identification procedures employed by the police were unnecessarily suggestive and violated his due process rights; and (4) the trial court erred in sentencing him to concurrent terms of 10 years' imprisonment for each count charged where the offenses were part of the same act or transaction, and were not "independently motivated" or otherwise separable.

The following pertinent testimony was adduced at trial.

Enzio Primer testified that on April 28, 1978, he left work at 4 p.m. and went to a currency exchange to cash his paycheck. He then went to a tavern at the corner of Oakley and 13th Street in Chicago, where he had a "couple of beers." After about an hour, Primer left the tavern, stopped at his home, and proceeded to a friend's home located at Cicero and Polk Street. While there, he shared a pint of liquor with his friend. At 11 p.m., he departed for a tavern on Kedzie Avenue between 15th and 16th Streets, where he had a shot of whiskey and two beers. He returned to his home at 1549 S. Kedzie Avenue at around 2 a.m.

An hour later, he left his home to buy some cigarettes at a service station at 16th and Sawyer, about one block away. On the way there, Primer saw two men standing in front of a tavern on Kedzie Avenue named "Bucket of Blood." He recognized one of the men as "Weaver," who had previously lived across the street from him. He identified Weaver in court as the defendant. As he returned from the service station, he noticed that the two men were still standing in front of the tavern. When he stopped at an empty lot near his home to open the cigarettes, he was "slugged" on the back of the head, knocked to the ground and stabbed in the back. He had $24 in his wallet and $40 in his shirt pocket. Someone removed the wallet, but he was unable to see the assailant since he was lying on his face. While he was on the ground being stabbed, Weaver asked Primer where the rest of his money was. At this juncture, someone yelled, "Leave that man alone," and the two men fled. Weaver ran down Kedzie Avenue toward 16th Street.

Primer got up and walked to his home. Shortly thereafter, he returned to the scene of the crime with a flashlight. After he found his keys and empty wallet on the ground, he went to another friend's home, and they called an ambulance. Before the ambulance arrived, Carrie Nunn, defendant's mother, came to Primer's house. He told her that her son had just stabbed and robbed him. The ambulance took him to Mt. Sinai Hospital, and he was later taken to Cook County Hospital.

While Primer was in the hospital, he was shown a group of six photographs by a police officer. He identified one of the pictures as that of defendant. At trial, he picked out the same picture of defendant.

On May 3, 1978, after a five-day stay at the hospital, Primer was brought by a police officer to the police station. He and the officer walked into a room where defendant was being held. Primer stated to him, "Man why do you do something like this to me?" According to Primer, defendant responded that he "didn't know it was me [Primer] and he wasn't intending to do it to me."

Investigator Thomas Konczal of the Chicago Police Department testified that on May 1, 1978, he spoke with various residents in the vicinity of the attack and obtained a photograph of defendant from the police files. Then, he brought this photograph along with five others to the hospital and displayed them to the victim. Konczal corroborated Primer's testimony that the latter selected defendant's picture as the person who robbed him on April 29, 1978.

Investigator James Gruber of the Chicago Police Department testified that he arrested defendant in a pool hall on May 3, 1978. On the way to the police station, he informed defendant of his Miranda rights. Defendant stated that he understood these rights.

At the station, defendant was placed in a second floor interview room and handcuffed to a ring on the wall. Gruber readmonished defendant of his Miranda rights. Defendant stated that he understood his rights, but asked the reason for his arrest and demanded to be confronted by his accuser. Gruber picked up Primer at the hospital, and told him that an arrest had been made and that he wanted him to view someone. When Gruber brought him into the interview room at the police station, Primer immediately asked defendant, "Why did you do this to me?" Defendant replied, "Man, I didn't know it was you we cut." Primer and Gruber then left the room.

Carrie Nunn testified on defendant's behalf that at the time of the crime she lived at 3153 West 16th Street with defendant, her son. After the attack, she saw Primer standing in front of his house. Primer told her: "Your son saved my life." He then told her that another man attacked him with a knife and that "if it wasn't for Weaver, he would have killed me." According to Nunn, Primer never told her that defendant struck him or took money from him.

Defendant testified on his own behalf that in the early morning hours of April 29, 1978, he went to his girlfriend's house at 3145 W. 15th Place. As he was passing a vacant lot on the way there, he heard a struggle and ran over and pulled a "stud" off Primer. Defendant had never seen this assailant before and saw no knife in his possession. The person fled and defendant continued on to his girlfriend's house. Primer remained on the ground.

Later, when defendant was arrested and brought to the police station, he denied having any conversation with the police. Primer was brought into the second floor room where he was being held and defendant said to him: "Mr. Primer, I didn't know it was you the stud robbed back there." Then, according to defendant, the police took ...


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